VBoston,   Ma.  i  [Council* 

[Miscellaneous  publications,] 
Report  of  the  Joint  Committee  on 

Public  Lands  in  relation  to  the 
public  garden.     l850/ 


JOINT  COMMITTEE  ON  PUBLIC   LANDS 


IN   RELATION    TO   THE 


PUBLIC    GARDEN, 


JULY,    1850. 


IREAU  OF 


44 


City  Document. — No.  18. 


REPORT 


JOINT  COMMITTEE  ON  PUBLIC  LANDS 


IN  KELATIOK  TO  THE 


PUBLIC   GARDEN, 

JULY,     1850. 


BOS  TON: 

1850. 

J.  H.  EASTBURN,  CITY  PRINTER. 

BUREAU  OF  GOVERWiV«f5TAL  RESEARCH 
44  LjrfRARY  BUILDING 


CITY    OF    BOSTON. 


In  Common  Council,  January  17,  1850. 

Ordered,  That  so  much  of  the  Mayor's  address  as 
relates  to  the  "  Public  Garden,"  so  called,  be  referred 
to  the  Joint  Committee  on  Public  Lands,  with  instruc- 
tions to  report  specially  at  an  early  day,  the  amount  of 
land  comprised  in  said  lot,  and  its  estimated  value ;  the 
tenure  upon  which  it  is  held,  and  the  conditions  ap- 
pertaining thereto,  if  there  be  any,  and  whether  it  is 
expedient  to  improve  or  sell  it. 

Sent  up  for  concurrence. 

FRANCIS  BBINLEY,  President. 


In  the  Board  of  Mayor  and  Aldermen,  > 

January  21,  1850.  5 

Read,  and  concurred. 

JOHN  P.  BIGELOW,  Mayor. 


REPORT. 


The  Joint  Standing  Committee  on  Public  Lands,  to 
whom  was  referred  by  an  order  of  the  City  Council 
passed  January  21st,  1850,  so  much  of  the  Mayor's 
address  as  relates  to  the  "  Public  Garden  "  (so  called,) 
with  instructions  to  report  specially  at  an  early  day 
the  amount  of  land  comprised  in  the  same,  and  its 
estimated  value,  the  tenure  upon  which  it  is  held, 
and  the  conditions  appertaining  thereto,  (if  there  be 
any,)  and  whether  it  is  expedient  to  improve,  or  sell 
the  same,  have  considered  the  subject,  and  respect- 
fully submit  the  following 

REPORT: 

It  is  scarcely  necessary  for  the  Committee,  to  state 
that  the  subject  of  selling  the  lands  west  of  Charles 
street,  has  often  been  agitated  in  and  out  of  the  City 
Council.  Reports  and  plans  have  been  made  and  sub- 
mitted from  time  to  time,  and  in  eighteen  hundred  and 
forty-three,  the  City  authorized  the  sale  of  the  land  be- 
tween the  continuation  of  Boylston  street  and  the  Bos- 
ton and  Providence  Railroad  Depot.  Your  Committee 
do  not  aim  at  presenting  many  new  views  on  this  sub- 
ject, deeming  it  very  desirable,  and  intending  more  par- 
ticularly to  collect  and  arrange  the  facts,  to  state  the 
various  opinions  that  have  been  entertained  in  former 


4  PUBLIC  GARDEN.  [July, 

years,  and  the  result  of  their  own  investigations,  and 
then  to  leave  their  suggestions  for  such  action,  as  may 
be  deemed  expedient  and  proper  by  the  City  Council. 

In  the  following  remarks,  the  Committee  will  freely 
copy  from  the  various  reports  and  documents,  that  they 
have  found  among  the  City  archives ;  not  considering 
it  necessary  in  all  instances  to  minutely  specify  the 
sources  of  their  information,  but  at  the  same  time  stat- 
ing those  facts  only,  which  they  consider  well  ascer- 
tained. 

The  history  of  the  title  to  the  Common,  and  other 
public  lands,  is  clearly  stated  in  an  opinion  given  several 
years  ago  by  Mr.  Pickering,  the  former  City  Solicitor, 
an  extract  from  which  will  not  be  considered  inapplica- 
ble in  this  connexion. 

He  remarks  that  "  The  l  Common'  in  this  City,  appears 
to  have  originated  in  a  similar  manner  to  that  which 
has  taken  place,  generally,  in  the  towns  of  this  Com- 
monwealth in  the  early  periods  of  their  settlement. 
Those  lands,  which  were  not  ' allotted'  to  particular 
inhabitants  and  enclosed  and  occupied  by  them,  re- 
mained open,  and  were  denominated  Common  Lands  or 
Commons,  in  which  the  inhabitants  at  large  had  rights 
of  common,  for  pasturing  their  cattle  or  other  purposes. 
In  proportion  as  the  population  of  the  towns  went  on 
increasing,  and  '  lots'  were  taken  up  by  individual  pro- 
prietors in  the  towns,  the  'Commons'  were,  of  course, 
constantly  undergoing  a  reduction  in  quantity,  till  they 
were  either  entirely  disposed  of,  or  in  part  retained,  and 
eventually  appropriated  to  other  public  uses,  than  those, 
to  which  they  had  been  originally  applied  in  a  more 
simple  state  of  society. 

It  may  be  further  observed,  that  in  this  City,  the  lands 
on  the  4  Neck,'  as  far  as  Roxbury,  constituted  a  part 


1850.]          CITY  DOCUMENT.— No.  18.  5 

of  the  '  Commons]  and  are  mentioned  by  that  name  in 
ancient  conveyances.  It  does  not  appear,  that  the  City, 
so  far  as  can  be  now  ascertained,  holds  the  Common 
under  a  title  distinct  from  that,  under  which  it  holds 
the  public  lands,  generally,  that  have  belonged  to  it 
from  the  early  periods  of  its  settlement. 

The  first  '  Planters '  took  possession  of  the  whole 
peninsula  of  Boston,  then  called  the  '  Neck '  of  land, 
'  bounded  by  the  sea  or  salt  water  on  the  northerly, 
easterly  and  westerly  sides,  and  by  the  line  of  Roxbury 
on  the  southerly  side.'  In  the  year  sixteen  hundred 
and  thirty  (September  7th)  the  General  Court  passed 
an  order  that  '  Trimountain  shall  be  called  Boston.' 
About  the  year  sixteen  hundred  and  thirty-four,  (as  ap- 
pears by  an  ancient  deposition  of  John  Odlin  and  other 
witnesses)  the  inhabitants  treated  with  William  Black- 
stone,  a  large  landholder  of  that  day,  '•for  the  purchase 
of  his  estate  and  right  in  any  lands  lying  within  the  said 
neck  of  land  called  Boston  ;'  and  for  a  consideration  paid 
in  money,  being  six  shillings  from  every  householder ; 
he  '  sold  to  the  then  inhabitants  of  said  town,  and  their 
heirs  and' assigns  forever,  his  whole  right,  and  interest  in 
all,  and  every  the  lands  lying  within  said  Neck'  Reserv- 
ing to  himself  however,  some  lands,  which  are  unim- 
portant in  the  present  inquiry.  In  addition  to  this 
conveyance  from  Blackstone,  the  town  many  years  after- 
wards, (March  19,  1684-5,)  took  a  deed  of  release  from 
the  Indian  Sachem,  Charles  Josias,  otherwise  called 
Josias  Wampatuck,  son  and  heir  of  Josias  Wampatuck, 
late  Sachem  of  the  Indians  inhabiting  the  Massachusetts 
in  New  England,  and  grandson  of  Chickatabut,  the  for- 
mer Sachem.  This  deed  of  release  recites,  that  the 
grantor  had  been  informed,  that  his  grandfather  had 
formerly  sold  to  the  English  planters  and  settlers,  the 


6  PUBLIC  GARDEN.  [July, 

whole  neck,  tract,  or  parcel,  'known  by  the  name  of 
Boston,' — that  the  lands  had  been  '  divided  out  among 
them,  and  occupied,  and  enjoyed  by  them,  peaceably  and 
quietly,  for  about  fifty  and  Jive  years  past  &c. ;  and  this 
grantor  confirmed  the  whole  territory  of  the  town  to 
Elisha  Cooke  and  others,  for  the  use  of  the  inhabitants. 
After  the  purchase  from  Blackstone  abovementioned, 
as  testified  in  the  depositions  above  referred  to,  the  town 
laid  out  a  place  for  a  '  Training  Field,'  which,  the  wit- 
nesses add,  '  ever  since  and  now  is  used  for  that  purpose, 
and  for  the  feeding  of  cattle' 

The  portion  of  the  common  lands  thus  appropriated 
for  a  training  field,  &c.,  has  ever  been  understood  in  a 
general  view,  to  include  what  is  now  called  in  popular 
language,  the  Common  ;  and  it  may  be  presumed  to 
have  been  land  of  such  a  quality,  as  was  suitable  for 
the  purposes  of  a  '  Training  Field,"  and  '  the  feeding  of 
cattle.' 

The  extent  of  this  Training  Field  or  Common,  has 
however,  varied  at  different  periods,  and  the  changes 
cannot  now  be  ascertained  with  precision  ;  but  the  fol- 
lowing brief  statement  of  its  history  may  afford  us  some 
aid. 

By  the  town  records  it  appears,  that  '  on  the  thirtieth 
day  of  the  first  month,  (March,)  sixteen  hundred  and 
forty,'  it  was  agreed  at  a  town  meeting,  as  follows: 
4  that  henceforth  there  shall  be  noe  land  granted,  eyther 
for  houseplott  or  garden,  to  any  person,  out  of  the  open 
ground  or  Common  fteild,  which  is  left  between  Gentry 
Hill  and  Mr.  Colbren's  End  ;  except  three  or  four  lots 
to  make  up  the  streete  from  Br.  Rob't  Walker's  to  the 
Round  Marshe.' 

The  place  here  called  Gentry  Hill  is  the  same  which 
has  been  since  known  as  Beacon  Hill ;  and  Mr.  Col- 


1850.]          CITY  DOCUMENT.— No.  18.  7 

bren  the  land  owner  here  named,  had  his  house  near 
the  corner  of  Eliot  and  Washington  street.  Such  ap- 
pears to  have  been  at  that  day,  the  extent  of  the  Com- 
mon hi  a  northerly  and  southerly  direction ;  but  this  ap- 
pears to  have  undergone  some  change,  at  different 
periods  afterwards,  which  it  is  not  material  to  specify. 
Its  extent  in  a  westerly  direction  also,  is  difficult  to  be 
defined  with  precision ;"  but  a  practical  result  sufficient 
for  the  present  purpose  '  may  perhaps  be  attained,  by 
a  consideration  of  the  nature,  or  quality  of  the  lands, 
which  may  be  supposed  to  have  been  appropriated  to 
the  particular  uses,  which  the  town  had  in  view,  and 
the  manner,  in  which  the  whole,  or  any  part  of  the 
lands,  east  and  west  of  Charles  and  Pleasant  streets, 
have  been  occupied  or  used,  under  the  authority  of  the 
town  at  different  times.' 

In  the  early  periods  of  its  history,  a  document  of 
some  importance,  is  a  lease  given  by  the  town  to  Gov- 
ernor Leverett,  dated  February  26th,  1665,  by  which 
they  leased  to  him  a  piece  of  land  in  this  part  of  the 
town,  which  is  thus  described  in  the  lease,  *  a  parcel  of 
land  lying  and  being  in  Boston  aforesaid,  called  or 
known  by  the  name  of  Fox  Hill,  with  all  the  Marsh 
about  the  same  so  far  as  the  salt  water  flows,  bounded 
with  the  highway  south,  with  the  Town's  Commons 
east  and  north,  and  with  the  beach  and  sea  west.' 

The  situation  of  '  Fox  Hill  with  the  marsh  about  it ' 
is  satisfactorily  known,  it  being  westerly  of  the  present 
'  Common,'  and  with  '  the  Marsh,'  extending  in  a  south- 
erly direction  as  far  as  the  public  lands  now  extend 
on  Pleasant  street,  and  probably,  at  the  period  of  this 
ancient  lease  reaching  still  farther  south.  A  part  of 
the  'Marsh'  lay  westerly  of  Fox  Hill,  and  a  part  east- 
erly of  it,  or  between  that  Hill,  and  the  upland  or 


8  PUBLIC  GARDEN.  [July, 

4  Common,'  and  this  last  mentioned  part  of  the  '  Marsh,' 
(or  a  portion  of  it,)  afterwards  fell  within  the  ropewalk 
grant,  in  which  it  is  described  as  marsh  land. 

At  the  time  of  this  lease,  then,  the  Common  seems  to 
have  been  limited  on  the  west  side  by  a  boundary  line 
not  perfectly  defined,  but  in  the  general  direction  of 
the  border  of  the  upland,  which  could  not  have  been 
far  from  the  main  course  of  Charles  street,  or  the  bot- 
tom of  the  Common. 

Whether  any  part  of  the  '  Common'  was  then  en- 
closed with  a  fence  does  not  appear.  But  about  sixty 
years  afterwards,'  (March  15,  1737,)  it  appears  that  a 
fence  had  been  placed  round  it;  for  the  town  then 
voted  and  ordered : — *  That  the  openings  or  gaps,  which 
lead  into  the  Common  be  made  lip  with  posts  and  a  rail 
on  the  top  to  prevent  carts,  &c.,  from  going  over  it  and 
spoiling  the  herbage ;'  and  one  of  the  selectmen  was 
desired  to  cause  the  same  to  be  forthwith  effected,  leav- 
ing only  one  gap  or  inlet  near  the  Granary,  to  go  up 
along  by  the  workhouse  to  Beacon  street,  agreeable  to 
said  order.' 

From  that  time  to  the  present,  the  land  which  is 
commonly  called  the  Common  has  been  enclosed,  but 
the  borders  of  it  have  occasionally  undergone  changes 
with  a  view  to  improve  the  Common  itself,  or  the  streets 
which  surround  it. 

So  far  as  the  votes  and  acts  of  the  town  or  city  may 
be  of  weight  in  determining  the  extent  and  meaning  of 
the  word  *  Common,'  it  may  be  remarked  generally,  that 
it  has  been  in  most  instances,  considered  to  include 
only  the  land  enclosed  by  the  fence ;  though  there  are 
some  entries  in  the  records,  in  which  a  greater  extent 
westward  is  given  to  it." 

The  Committee  deem  it  necessary  to  insert  in  this 


1850.]         CITY  DOCUMENT.— No.  18.  9 

report,  a  statement  of  other  proceedings  of  the  town 
and  also  of  certain  proceedings  of  the  city  relating  to 
the  public  lands. 

It  appears  from  the  records  of  the  town,  that  on  the 
twelfth  day  of  August  in  the  year  seventeen  hundred 
and  ninety-four,  a  meeting  of  the  people  was  held,  for 
the  purpose  of  determining  "  whether  the  town  would 
appropriate  the  marsh  at  the  bottom  of  the  Common, 
or  any  other  of  the  town  lands  for  ropewalks,  for  the 
accommodation  of  the  sufferers  by  the  late  fire."  This 
had  reference  to  a  fire  on  Pearl  street,  by  which  the 
ropewalks  there  had  been  destroyed.  At  this  meeting, 
the  Honorable  Thomas  Dawes  and  others  were  appoint- 
ed a  Committee,  to  confer  on  the  subject  with  the  own- 
ers of  the  ropewalks  so  destroyed ;  and  it  was  ordered 
that  a  survey  should  be  taken  of  the  "  Marsh,"  and 
also,  of  part  of  the  land  on  Boston  -Neck,  sufficient  for 
the  purpose  of  erecting  as  many  ropewalks  as  were 
consumed. 

On  the  twenty-eighth  day  of  August,  of  the  same 
year,  that  Committee  made  a  report,  which  was  recom- 
mitted to  them,  with  instructions  "  to  confer  with  the 
sufferers,  and  to  report  a  specific  quantity  of  ground 
for  their  use,  and  the  terms  upon  which  the  same  be 
granted." 

Their  second  report  was  made  on  the  first  day  of  the 
ensuing  September,  and  was  accepted  and  adopted  by 
the  inhabitants.  In  this  report,  after  stating  that  they 
had  again  considered  the  subject,  and  had  repeated  con- 
ferences with  the  parties  concerned,  the  Committee 
recommended  the  passage  of  sundry  votes,  to  the  effect : 
that  there  should  be  granted  to  the  persons  hereafter 
named,  being  the  owners  of  the  ropewalks  so  consumed 
by  fire,  a  piece  of  marsh  land,  and  flats  at  the  bottom 


10  PUBLIC  GARDEN.  [July, 

of  the  Common,  including  the  whole  or  such  part  of 
Fox  Hill  as  might  fall  within  the  following  bounds,  viz : 

"  Beginning  at  the  westerly  end  of  Ridge  Hill,  five 
hundred  feet  from  Bacon  street,  and  running  directly 
towards  Eliot  street,  as  far  as  the  town's  land  extends 
on  the  west  side  of  Pleasant  street,  so  far  as  to  leave  a 
space  of  fifty  feet  between  this  line  and  the  end  of  the 
rail  fence  projecting  down  from  the  burying  ground  on 
the  south  side  of  the  Common ;  then  extending  in 
weath  three  hundred  feet  from  the  point  at  which  the 
above  described  line  may  strike  upon  Pleasant  street, 
being  bounded  westerly  throughout  by  a  line  run  par- 
allel with  the  line  first  described,  and  beginning  at  the 
head  of  the  town's  land  at  the  southerly  part  of  the 
marsh,  and  running  in  a  northerly  direction  until  it 
shall  meet  with  a  line  drawn  from  the  westerly  end  of 
Ridge  Hill  parallel  with  Bacon  street,  as  is  more  fully 
described  on  a  plan  taken  by  Mr.  Osgood  Carlton,  Au- 
gust 29,  1794." 

"  And  that  the  said  grantees  should  be  authorized 
and  empowered  to  extend  the  limits  of  the  land  granted 
fifty  feet  over  the  flats ;  they  relinquishing  the  same 
space  on  the  easterly  side  of  said  land,  or  to  alter  the 
said  limits  so  as  to  extend  across  the  said  marsh  in  a 
diagonal  direction,  provided,  they  did  not  in  either  case 
come  nearer  than  fifty  feet  to  the  end  of  the  rail  fence 
aforesaid,  nor  run  northerly  so  as  to  cross  the  said  line 
to  be  run  parallel  with  Bacon  street ;  reserving  sixty 
feet  in  width  across  the  southerly  end  of  said  piece  of 
land,  for  a  road  from  Pleasant  street  down  to  the  chan- 
nel. That  the  following  grants  in  fee  simple  should  be 
made,  viz :  the  first  fifty  feet  in  width  from  the  easterly 
side,  being  Lot  No.  1,  on  that  plan,  to  Isaac  Davis;  the 
second  fifty  feet  in  width,  being  Lot  No.  2,  to  Jeffrey 


1850.]          CITY  DOCUMENT.— No.  18.  11 

Richardson;  the  third  fifty  feet  in  width,  being  Lot 
No.  3,  to  Samuel  Emmons ;  the  fourth  fifty  feet  in 
width,  being  Lot  No.  4,  to  William  and  Archibald 
McNiel ;  the  fifth  fifty  feet  in  width,  being  Lot  N  o.  5, 
to  John  and  Richard  Codman ;  the  sixth  fifty  feet  in 
width,  being  Lot  No.  6,  to  Edward  Howe ;  reserving, 
however,  a  right  in  the  town  to  carry  sluices  and  drains 
through  the  said  piece  of  land  to  the  salt  water,  in  any 
direction,  forever.  These  grants  were  made  upon  the 
following  conditions : — 

First,  That  neither  of  the  said  grantees  nor  their 
heirs  or  assigns,  should  at  any  time  thereafter  erect,  or 
cause  to  be  erected  any  ropewalk,  upon  the  lands 
where  the  late  ropewalks  were  consumed  by  fire,  nor 
any  part  thereof. 

Second,  That  there  should  never  be  any  other  build- 
ings than  ropewalks,  nor  more  than  six  of  them  erected 
on  the  lands  granted. 

Third,  That  the  heads  of  the  ropewalks  which  should 
be  erected  on  the  same  should  be  placed  at  the  south- 
erly end  thereof;  "  that  they  should  not  be  more  than 
one  story  in  height,  nor  the  eaves  more  than  seven  feet 
from  the  floor,  except  forty  feet  from  the  head  of  each 
walk  for  a  store,"  which  might  be  two  stories  high  and 
built  of  brick,  and  covered  with  slate. 

Fourth,  That  the  grantees  should  erect,  in  the  space 
of  two  years  from  the  time  of  the  grant,  at  their  own 
expense,  a  sufficient  sea  wall  in  the  opinion  of  the 
Selectmen,  the  whole  length  of  the  granted  land,  on 
the  westerly  side  thereof,  at  a  distance  not  exceeding 
thirty  feet  from  the  same;  the  right  of  property  in 
which  wall,  if  erected  without  the  bounds  of  the  grant, 
should  be  in  the  town. 


12  PUBLIC  GARDEN.  [July, 

Nothing  in  these  grants  was  to  be  considered  as  con- 
veying to  the  grantees  or  either  of  them,  any  right  of 
passage  in  any  direction  across  the  common,  to  or  from 
the  granted  lands. 

The  Selectmen  in  the  name  and  behalf  of  the  town, 
were  authorized  to  execute  good  and  sufficient  deeds  to 
the  respective  parties,  of  the  respective  lots,  upon  these 
conditions,  and  with  these  restrictions  and  reservations  ; 
and  to  insert  in  each  of  the  deeds,  so  to  be  executed,  a 
covenant  on  the  part  of  the  town,  that  it  would  not 
build  any  ropewalk  on  the  Common,  nor  ever  there- 
after grant  any  part  thereof,  for  the  purpose  of  building 
such  walk.  The  Selectmen  were  also  authorized  to 
lay  out  a  road  sixty  feet  wide  from  Pleasant  street, 
along  the  easterly  side  of  these  lands  over  the  marsh 
towards  Beacon  street,  in  order  to  meet  a  road  that 
might  be  opened  from  West  Boston  Bridge. 

The  question  as  to  the  dimensions  of  the  ropewalk 
buildings,  was  submitted  to  the  inhabitants  on  the 
ninth  day  of  March,  of  the  following  year,  and  was  by 
them  referred  to  the  Selectmen,  to  be  settled  in  the 
manner,  which  they  should  deem  most  expedient  for 
the  interest  of  the  town,  "  upon  the  most  liberal  con- 
struction of  the  foregoing  votes." 

Only  one  deed  appears  by  the  records  to  have  ever 
been  given  by  the  town  of  any  of  these  lands,  and  that 
was  to  William  and  Archibald  McNiel  of  lot  No.  4,  de- 
scribing it  as  being  fifty  feet  in  width,  and  extending 
from  a  line  parallel  to  Beacon  street,  and  five  hundred 
feet  therefrom,  to  a  street  then  lately  laid  out  by  the 
Selectmen,  sixty  feet  wide,  leading  from  Pleasant  street 
to  the  salt  water,  and  bounded  northerly  on  that  line, 
easterly  on  land  granted  to  Samuel  Emmons,  southerly 
on  the  above  mentioned  new  street,  and  westerly  on 


1850.]          CITY  DOCUMENT.— No.  18.  13 

land  granted  to  John  Codman.  This  deed  was  execu- 
ted by  the  Selectmen,  and  is  dated  August  31,  1796, 
and  may  be  found  recorded  with  Suffolk  Deeds,  Book 
184,  p.  142. 

On  the  twenty-third  day  of  May,  eighteen  hundred 
and  three,  a  Committee  were  appointed  with  full 
power  to  effect  a  settlement  with  these  proprietors, 
and  to  give  them  deeds,  upon  the  original  terms  im- 
posed, or  upon  such  other  terms  as  would  be  for  the  in- 
terest and  advantage  of  the  town. 

The  buildings  on  these  lands  having  been  destroyed 
in  the  mean  time,  on  the  tenth  day  of  March,  eighteen 
hundred  and  six,  a  meeting  was  held  by  the  town,  to 
determine  the  expediency  of  taking  any  measures,  rela- 
tive to  the  rebuilding  of  the  same,  and  the  subject  was 
then  referred  to  the  consideration  of  the  Selectmen, 
who  subsequently  in  the  same  month,  made  a  report  to 
the  effect;  that  the  town  granted  to  the  proprietors 
of  the  ropewalks,  the  ground  on  which  the  same  stood, 
for  the  purpose  of  ropewalks,  and  for  no  other  use 
whatever,  and  that  the  proprietors  had  done  nothing  to 
forfeit  their  right  of  rebuilding. 

On  the  sixteenth  day  of  January,  eighteen  hundred 
and  twenty-three,  a  Committee  were  appointed  by  the 
City  Council,  to  confer  with  the  proprietors,  and  ascer- 
tain on  what  terms  they  would  release  to  the  City  their 
interest  in  the  lands  under  and  near  their  ropewalks. 
The  Committee  were  also  empowered,  to  cause  plans  to 
be  drawn,  to  show  in  what  manner  it  was  expedient 
that  the  land  should  be  improved,  and  further  to  con- 
sult with  the  Boston  and  Roxbury  Mill  Corporation  on 
the  subject  of  such  improvement,  and  the  bounds  of 
their  "  empty  basin." 

A  report  was  made  by  this  Committee  on  the  twenty- 


14  PUBLIC  GARDEN.  [July, 

fourth  day  of  the  following  March,  in  which  they  stated 
the  result  of  their  conferences  to  be,  sundry  propositions 
on  the  part  of  the  proprietors,  and  one  on  the  part  of 
the  Boston  and  Roxbury  Mill  Corporation.  The  pro- 
prietors offered  to  release  to  the  City,  all  their  interest 
in  these  lands  for  the  sum  of  $86,000 — or  one  quar- 
ter part  thereof  if  the  City  would  release  to  them 
the  remaining  three  quarters,  and  grant  them  the  lib- 
erty of  erecting  dwelling  houses  thereon.  Or  if  the 
City  would  fill  up  the  land  to  a  height  suitable  for  the 
erection  of  buildings,  and  release  one  half  thereof  to 
them  with  such  liberty,  they  would  give  a  release  to 
the  City  of  the  residue. — Or  would  give  the  sum  of 
$30,000,  if  the  City  would  release  its  interest  in  the 
whole  of  the  same,  and  confirm  to  them  a  good  title 
thereto,  with  the  privilege  of  erecting  dwelling  houses 
thereon. 

The  Committee  further  stated  that  the  Boston  and 
Roxbury  Mill  Corporation  had  no  general  plan  of  im- 
provement to  propose,  but  would  consent  that  if  the 
City  should  fill  up  its  flats,  the  materials  therefor  might 
be  taken  from  their  empty  basin.  That  the  Corpora- 
tion were  also  willing  to  have  the  bounds  of  this  basin 
adjusted  and  fixed,  and  were  ready  to  treat  with  any 
persons  authorized  on  behalf  of  the  City  to  fix  the 
same ;  contending,  however,  that  by  force  of  their  char- 
ter, they  had  a  right  to  take  so  much  of  the  flats  of  the 
City,  or  of  individuals,  as  they  might  require  for  such 
basin,  and  that  they  had  not  forfeited  the  flats  granted 
to  thorn  by  virtue  of  a  vote  of  the  town  passed  October 
20,  1813. 

This  forfeiture  was  insisted  upon  by  that  Committee, 
as  well  as  the  right  of  the  City  to  fill  up  and  occupy 
the  flats  to  the  channel,  provided  the  distance  should 


1850.]          CITY  DOCUMENT.— No.  18.  15 

not  exceed  one  hundred  rods  from  the  shore.  An  ami- 
cable adjustment  of  the  matter  was  suggested  by  them, 
with  a  proposition  that  a  Committee  should  be  appoint- 
ed for  that  purpose.  And  in  concluding  their  report, 
the  Committee  remarked,  that  they  "  did  not  deem  it 
expedient  to  recommend  the  acceptance  of  either  of 
the  propositions  of  the  ropewalk  proprietors." 

This  report  was  accepted. 

On  the  sixth  day  of  November  in  the  same  year,  the 
proposition  that  the  value  of  the  ropewalk  lands  should 
be  referred  to  appraisers,  was  accepted  on  condition, 
that  they  should  be  restricted  in  their  estimation,  to  the 
value  of  the  land,  for  the  purpose  specified  in  the  origi- 
nal conveyance  from  the  town,  and  a  Committee  were 
accordingly  appointed  to  effect  the  reference,  and  in  the 
month  of  January  following,  they  reported  that  they 
had  referred  the  matter  to  the  decision  of  Patrick  T. 
Jackson,  Ebenezer  Francis,  Edward  Cruft,  Peter  C. 
Brooks,  and  John  P.  Thorndike,  upon  the  express 
reservation  that  their  award  should  be  subject  to  the 
final  approval  of,  or  rejection  by  the  City  Council ;  but 
that  one  of  the  proprietors  of  the  land  had  objected  to 
be  bound  by  the  award,  upon  the  ground  that  the  obli- 
gation so  to  be  bound  was  not  mutual,  the  City  having 
a  reserved  power  to  accept  or  reject  it,  and  that  the 
same  would  not  be  assented  to  and  carried  into  effect 
by  this  proprietor.  For  the  purpose  of  obviating  and 
removing  this  obstacle,  on  the  recommendation  of  the 
Committee,  it  was  resolved,  that  a  bond  should  be  en- 
tered into  on  the  part  of  the  City,  conditioned  to  abide 
by  and  perform  the  award  of  these  referees,  the  proprie- 
tors giving  similar  bonds. 

On  the  twenty-fourth  of  the  following  May,  the 
Mayor  reported  to  the  City  Council  the  award,  which 


16  PUBLIC  GARDEN.  [July, 

was  in  substance,  that  there  should  be  paid  to  the  pro- 
prietors the  sum  of  $54,000,  in  full  for  their  respective 
rights,  empowering  the  City,  however,  to  retain  from 
and  out  of  this  amount  sufficient  to  pay  off  any  incum- 
brances  on  the  land. 

On  the  twenty-fifth  day  of  February,  in  the  year 
eighteen  hundred  and  twenty-four,  Joseph  W.  Lewis, 
then  of  Boston,  by  a  deed  of  that  date,  with  an  unlimited 
warranty,  recorded  with  Suffolk  Deeds,  [Book  290,  folio 
193.]  in  consideration  of  the  sum  of  one  dollar,  and  for 
the  further  consideration  expressed  in  an  agreement 
entered  into  with  the  City,  of  the  same  date,*  conveyed 
to  the  City,  in  fee  simple,  the  three  ropewalk  lots  next 
to  the  Common,  bounded  southeastwardly,  on  Pleasant 
street,  two  hundred  feet;  northeastwardly,  on  Charles 
street,  one  thousand  and  six  feet ;  northwestwardly,  on 
land  of  the  City,  one  hundred  and  fifty  feet ;  and  south- 
westwardly,  on  lot  No.  4,  eleven  hundred  and  thirty- 
eight  feet.  In  the  same  deed  he  released  the  dower  of 
his  wife,  alleging  that  he  was  authorized  so  to  do,  by 
virtue  of  a  resolve  of  the  legislature  passed  on  the 
twenty-first  day  of  that  month.  His  wife,  Ann  Lewis, 
also  on  the  twenty-fourth  day  of  April,  eighteen  hun- 
dred and  twenty-four,  by  a  joint  deed  with  her  husband, 
quitclaimed  the  same  unto  the  City. 

Henry  Chapman,  by  deed 'dated  Feb.  25,  1824,  and 
recorded  as  above,  liber  290,  folio  194,  containing  an 
absolute  warranty,  conveyed  for  a  like  consideration,  to 
the  City  in  fee  simple,  lot  No.  4,  describing  the  same 


*  This  agreement  was,  among  other  tilings,  that  the  City  should  pay  to  Lewis 
the  amount  awarded  to  be  paid  to  him,  within  thirty  days  after  the  making  and 
publication  of  the  award,  retaining  therefrom  the  amount  which  might  be  neces- 
sary to  pay  off  incumbrances  on  the  land.  An  agreement  of  a  like  purport  was 
entered  into  with  the  various  other  proprietors. 


1850.]          CITY  DOCUMENT— No.  18.  17 

as  follows  : — southeastwardly  on  a  street  leading  from 
Pleasant  street  to  the  salt  water,  measuring  fifty  feet ; 
northeastwardly  on  lot  No.  3,  eleven  hundred  and  thir- 
ty-eight feet ;  northwestwardly  on  land  of  the  city,  fifty 
feet ;  and  south westwardly  on  lot  No.  5,  eleven  hun- 
dred and  thirty-eight  feet.  This  deed  also  contained 
a  release  of  dower.  William  Gray  and  Amos  Binney, 
by  a  like  warranty  deed,  of  the  same  date  and  recorded 
as  the  last,  and  for  a  like  consideration,  (except  that  no 
specific  time  was  assigned  in  the  agreement,  for  payment 
of  the  sum  awarded,)  and  containing  a  release  of  dower 
conveyed  in  fee  simple  to  the  city,  lot  No.  5,  bounding 
and  describing  it  as  follows,  viz  : — southeastwardly  on 
Pleasant  street,  fifty  feet ;  northeastwardly  on  lot  No. 
4,  eleven  hundred  and  thirty-eight  feet;  northwest- 
wardly on  land  of  the  city,  fifty  feet ;  and,  southwest- 
wardly  on  lot  No.  6,  eleven  hundred  and  thirty-eight 
feet.  Amos  Binney,  by  a  like  deed  of  the  same  date, 
and  recorded  as  above,  folio  195,  and  for  a  similar  con- 
sideration to  that  mentioned  in  the  deeds  of  Lewis  and 
Chapman,  and  containing  a  like  release  of  dower,  con- 
veyed in  fee  simple  to  the  city  lot  No.  6,  bounded  and 
described  in  the  manner  following,  viz: — southeast- 
wardly on  Pleasant  street,  fifty  feet ;  northeastwardly 
on  lot  No.  5,  eleven  hundred  and  thirty-eight  feet ; 
northwestwardly  on  land  of  the  city,  fifty  feet;  and, 
south  westwardly  also,  on  its  land,  eleven  hundred  and 
thirty-eight  feet. 

By  these  conveyances,  the  City  became  again  seized 
and  possessed  of  all  the  land  granted  in  1794  to  the 
ropewalk  proprietors,  containing  six  specific  lots. 

On  the  sixth  day  of  July,  eighteen  hundred  and 
twenty-four,  a  Committee  duly  appointed  in  that  behalf, 
reported  that  they  had  discharged  and  paid  off  all  the 


18  PUBLIC  GARDEN.  [July, 

mortgages,  existing  on  the  ropewalks  formerly  belonging 
to  Joseph  W.  Lewis,  and  that  the  title  of  the  City  to  the 
whole  of  the  ropewalk  lands,  thereby  became  complete 
and  unquestionable ;  and  they  thereupon  recommended 
a  vote  of  the  people  upon  the  question  of  the  disposition 
of  the  same.  On  the  same  day,  it  was  ordered  that  a 
vote  of  the  inhabitants  qualified  to  vote  in  city  affairs, 
should  be  had  on  the  twenty-sixth  instant,  on  the 
questions :  first, — whether  the  City  Council  should 
have  authority  to  make  sale  of  the  upland  and  flats 
owned  by  the  City,  lying  west  of  Charles  street,  on 
such  terms,  and  at  such  times,  as  they  might  deem 
expedient;  and,  secondly,  whether  they  should  have 
authority  to  annex  as  a  condition  to  such  sales,  the  pro- 
vision, that  the  land  known  by  the  name  of  the  Com- 
mon, and  lying  between  Charles,  Beacon,  Park,  Com- 
mon and  Boylston  streets,  should  be  forever  thereafter 
kept  open,  and  free  of  buildings  of  any  kind,  for  the 
use  of  the  citizens. 

At  this  meeting  it  was  determined,  that  a  Commit- 
tee of  twenty-five  persons  should  be  chosen,  two  from 
each  ward,  and  one  by  the  twenty-four  so  chosen  by 
the  respective  wards,  to  consider  and  report  on  the  sub- 
ject at  an  adjourned  meeting.  This  report  was  pre- 
sented at  a  meeting  held  on  the  sixteenth  day  of  the 
ensuing  December,  and  its  consideration  was  deferred  to 
the  meeting  to  be  held  on  the  twenty-seventh  day, 
when  the  questions  to  be  determined,  as  suggested  by 
the  Committee,  were  proposed  to  the  meeting.  The 
first  and  second  questions  were  exactly  the  same  as 
those  mentioned  to  be  considered  on  the  twenty-sixth 
day  of  July.  The  third  was ;  whether  the  City  Council 
should  be  authorized  to  bring  the  question  of  bounda- 
ries between  the  City,  and  the  Boston  and  Roxbury 
Mill  Corporation  to  a  settlement,  and  for  that  purpose 


1850.]          CITY  DOCUMENT— No.  18.  19 

be  authorized  to  renew  or  confirm  the  former  grants 
and  acts  of  the  town,  with  respect  to  that  Corporation, 
on  such  terms  and  conditions  as  they  might  deem  ex- 
pedient ;  provided  that  no  confirmation  or  conveyance 
should  be  made  in  virtue  of  their  vote,  to  authorize  the 
erection  of  dwelling-houses  or  other  buildings  on  any 
part  of  the  premises. 

The  fourth  was ;  whether  the  City  Council  should  be  au- 
thorized to  prepare  for  sale,  and  to  convey  on  such  terms 
and  conditions  as  they  might  deem  fit,  so  much  of  the 
upland  and  flats  as  were  situated  southerly  of  a  line,  be- 
ginning at  a  point  on  Charles  street  thirteen  hundred  and 
fifty  feet  southerly  from  the  dam  belonging  to  the  Bos- 
ton and  Roxbury  Mill  Corporation,  and  opposite  to  the 
southwesterly  comer  of  the  Common,  and  running 
westerly  at  an  angle  of  eighty-five  degrees  with  Charles 
street  to  the  bounds  of  the  City  flats ;  provided,  that 
there  should  be  annexed  to  all  the  conveyances,  a  con- 
dition, that  the  Common  and  all  the  upland  and  flats 
lying  westerly  therefrom,  should  be  forever  after  kept 
free  of  and  unincumbered  by  any  buildings. 

On  the  first  question,  the  vote  was  846  in  the  affirm- 
ative, and  1,027  in  the  negative.  On  the  second,  1,111 
in  the  affirmative,  and  737  in  the  negative.  On  the 
third,  464  in  the  affirmative,  and  1,360  in  the  negative. 
And  on  the  fourth,  420  in  the  affirmative,  and  1,404 
in  the  negative.  There  had  been  presented  to  the  City 
Council,  prior  to  this  meeting,  a  remonstrance  by  Wil- 
liam Phillips  and  others,  against  the  sale  of  the  rope- 
walk  lands. 

The  Committee  deem  it  advisable,  in  order  that  a 
correct  and  sufficient  knowledge  may  be  attained  of  the 
tenure  upon  which  the  Public  Garden  is  held  by  the 
City,  to  insert  in  their  present  report  the  substance  of 
the  various  proceedings  of  the  City  Council,  on  the  sub- 


20  PUBLIC  GARDEN.  [July, 

ject  of  the  settlement  of  the  bounds  of  the  property  of 
the  Boston  and  Roxbury  Mill  Corporation,  and  of  the 
adjoining  property  of  the  City. 

On  the  twelfth  day  of  January,  in  the  year  eighteen 
hundred  and  twenty-six,  it  appears  that  a  petition 
of  this  corporation  was  presented  to  the  City  Council, 
praying  that  commissioners  might  be  appointed  to 
settle  the  respective  rights  of  the  petitioners,  in  and  to 
the  receiving  basin,  (so  called,)  or  flats  in  the  Back  Bay ; 
upon  which  a  Committee  were  appointed  to  take  legal 
advice,  in  regard  to  the  rights  of  the  City  in  the  matter. 

On  the  ninth  day  of  October  following,  this  Commit- 
tee made  their  report,  recommending  that  another 
Committee  should  be  appointed  by  the  City  Council, 
with  full  powers  to  settle  and  adjust  with  the  proprie- 
tors of  land  west  of  Washington  street,  and  the  corpo- 
ration, the  division  line  of  their  land  and  that  of 
the  City :  provided,  that  no  agreement  should  be  made, 
which  should  authorize  the  said  proprietors,  or  the 
said  corporation,  to  erect  any  building  between  the 
channel  and  Charles  street.  Which  report  was  ac- 
cepted, and  the  proposed  Committee  appointed.  And, 
on  the  twenty-sixth  day  of  December  in  that  year, 
an  agreement  of  three  parts,  was  entered  into,  by  and 
between  the  City,  these  proprietors  of  flats  and  real 
estate  on  the  easterly  and  southeasterly  sides  of  the  re- 
ceiving basin,  and  this  corporation,  whereby  the  bound- 
ary line  between  the  three  contracting  parties  was  settled 
and  described  as  follows,  viz :  "  Beginning  at  a  point  on 
the  dam,  six  hundred  and  fifty  feet  from  Charles  street, 
thence  running  in  a  straight  (being  the  first)  line, 
southerly  till  it  strikes  the  southwesterly  line  of  Castle 
street  continued  into  the  basin,  at  a  point  twelve  hun- 
dred feet  from  Washington  street,  as  marked  upon  a 
plan  made  by  S.  P.  Fuller ;  thence  running  southwest- 


1850.]  CITY  DOCUMENT— No.  18.  21 

erly  in  a  straight  (being  the  second)  line,  through  or 
along  land  claimed  by  said  proprietors,  or  other  individ- 
uals, passing  through  the  boundary  line  between  the  said 
City  and  Edward  Tuckerman,  Esq.,  at  a  point  twelve 
hundred  feet  from  Washington  street,  and  extending 
until  it  strikes  a  point  in  said  City's  land,  two  hundred 
feet  distant  from  said  boundary  line  last  named ;  then 
turning  and  running  westerly  in  a  straight  (being  the 
third)  line,  by  a  cedar  post  to  Northampton  street,  as 
marked  on  said  Fuller's  plan ;  thence  northerly  along 
the  easterly  side  of  said  Northampton  street  to  the 
boundary  line  between  Boston  and  Roxbury."  And  in 
and  by  said  agreement  the  City  and  the  proprietors  of 
the  flats,  &c.,  did  agree  in  consideration  of  the  cove- 
nants and  agreements  of  the  Boston  and  Roxbury  Mill 
Corporation,  that  the  latter  should  have,  hold,  and 
enjoy  in  fee  simple,  all  the  right,  title,  and  interest, 
which  the  City  or  either  of  the  proprietors  then  had,  or 
ever  had,  in  and  to  the  land  and  space  within  the  ba- 
sin, lying  westerly  and  northerly  of  the  three  lines  first 
above  described,  and  easterly  of  the  line  of  Northamp- 
ton street ;  excepting  the  right  reserved  to  the  board 
of  health  by  the  act  of  incorporation  of  the  Boston 
and  Roxbury  Mill  Corporation.  It  was  also  therein 
agreed,  that  the  City  and  the  proprietors,  in  fee  simple, 
separately  and  respectively,  according  to  their  several 
rights  and  estates  in  and  to  the  upland  to  which  the 
flats  were  adjacent,  should  have,  hold,  and  enjoy  all  the 
right,  title,  and  interest,  whether  of  property  or  flowage, 
and  every  other  right,  of  whatever  name  or  nature, 
which  the  Corporation  then  had,  or  ever  had,  in  and  to 
the  land  and  flats  claimed  by  the  City  or  the  Proprie- 
tors, lying  between  the  three  lines  first  above  described 
and  the  adjacent  upland,  and  between  said  east  side  of 
Northampton  street  and  the  adjacent  upland.  This 


22  PUBLIC  GARDEN.  [July, 

agreement  also  gave  a  right  forever  to  the  City  and 
these  proprietors  to  dig,  lay,  and  maintain  all  conve- 
nient and  necessary  sewers  or  drains  from  the  upland 
to  the  channel  or  deep  water  within  the  basin,  accord- 
ing to  law  and  the  common  and  usual  practice  for  the 
time  being  within  the  City ;  and  also,  a  right  to  dig 
and  carry  away  in  common  with  the  Corporation,  and 
those  whom  they  might  license,  mud  and  earth  from 
the  vacant  flats  within  the  basin ;  which  right,  (it  was 
provided)  should  not  be  construed  to  give  said  City  and 
the  proprietors  any  right  to  dig  to  a  greater  depth  than 
the  level  of  the  sills  of  the  sluice-ways,  nor  within  one 
thousand  feet  from  the  main  drain  or  cross-dam  west  of 
the  channel  near  Charles  street,  nor  east  of  said  chan- 
nel, within  two  hundred  feet  of  that  dam,  nor  for  any 
other  purpose  than  that  of  filling  up  and  raising  the 
said  flats  and  land  bordering  upon  the  basin,  and  be- 
longing to  the  City  and  the  Proprietors. 

There  was  a  further  covenant  or  agreement  in  this 
instrument,  that  neither  the  Corporation  or  its  assigns, 
should  erect  any  building  within  the  basin  in  front  and 
west  of  the  City's  land  on  Charles  street,  within  the 
distance  of  one  hundred  rods  from  that  street,  unless 
the  City  or  its  assigns  should  erect  buildings  upon 
their  land  in  front  and  west  thereof,  and  that  neither 
the  Corporation  or  its  assigns,  at  any  time  should  erect 
any  buildings  within  the  basin  between  that  street  and 
the  channel  immediately  in  front  and  west  of  that 
street,  whether  the  City  should  use  its  land  for  building 
or  not.  And,  further,  that  the  erection  by  the  City  on 
its  land,  of  gun-houses,  school-houses,  or  other  like 
buildings,  to  be  used  exclusively  for  public  purposes, 
and  not  for  rent  or  profit,  should  not  authorize  said 
Corporation  to  build  within  that  distance,  and  that 
whenever  the  Corporation  should  so  build,  the  City 


1850.]          CITY  DOCUMENT— No.  18.  23 

might  build  on  the  whole  space  which  it  owned  between 
said  street  and  the  channel,  before  the  execution  of  the 
agreement.  And,  that  the  City  authorities,  whenever 
they  might  deem  it  expedient,  might  lay  out  as  a  free 
and  common  highway,  that  part  of  the  road  or  dam  of 
the  Corportion,  which  extended  from  said  street  to  the 
channel,  and  might  then  fill  up  their  land  opposite  to 
said  street  so  as  to  connect  it  with  the  adjacent  dam, 
and  to  pass  freely  to  and  from  the  same.  The  tide 
water,  also,  was  not  to  be  voluntarily  let  into  said 
basin  by  said  Corporation,  higher  than  might  be  neces- 
sary for  the  common  and  ordinary  use  of  the  mill-pow- 
er, to  the  injury  of  any  of  the  parties,  but  no  damages 
were  to  be  claimed  unless  the  water  was  thus  raised 
to  a  greater  height,  than  three  feet  above  the  level  of 
low  water  in  the  said  basin  at  neap  tides.  The  Com- 
mittee executing  this  agreement  on  the  part  of  the  City, 
averred  and  declared  in  writing,  that  one  of  the  condi- 
tions of  their  signing  the  same,  as  well  as  their  under- 
standing thereof  was  "  That  in  case  the  Corporation 
should  build  on  the  land  west  of  the  channel,  within 
sixteen  hundred  and  fifty  feet  of  Charles  street,  all  the 
land  lying  between  that  street  and  the  centre  of  the 
channel  should  revert  and  belong  to  the  City,  in  fee 
simple."  The  agreement,  however,  was  subsequently 
altered  by  the  parties  in  interest,  so  that  if  the  Cor- 
poration should  build  as  last  mentioned,  then  all 
the  land  lying  between  that  street  and  the  channel 
should  revert  and  belong  to  the  City  in  manner  afore- 
said. 

On  the  first  day  of  February,  in  the  year  eighteen 
hundred  and  twenty-seven,  by  an  indenture  of  that 
date,  made  by  and  between  the  City  and  that  Corpora- 
tion, the  same  line  was  established  between  them,  and 
the  latter  released  to  the  former,  the  estate,  premises 


24  PUBLIC  GARDEN.  [July, 

and  rights  it  had  released  by  the  last  mentioned  agree- 
ment to  it,  and  the  said  proprietors  of  flats,  &c.;  and  the 
City  released  to  the  Corporation,  the  same  estate  and 
premises,  it  had  released  by  that  agreement. 

This  indenture  also  contained  a  provision,  that  when- 
ever the  "  Corporation  shall  build  on  said  basin  within 
one  hundred  rods  of  Charles  street,  then  all  the  land 
in  said  basin  east  of  the  following  line,  that  is  to  say ; 
a  line  beginning  on  the  Mill  Dam  six  hundred  and 
ninety  feet  from  the  westerly  side  of  Charles  street,  and 
running  southerly  in  a  straight  course  to  a  point  on  the 
line  between  Josiah  Vose's  land  and  the  City's  land,  dis- 
tant nine  hundred  and  twenty-six  feet  and  three  inches 
from  the  northerly  corner  of  said  Josiah  Vose's  house 
on  Pleasant  street,  measuring  on  the  line  of  said  Vose's 
land  as  marked  on  the  plan  of  said  Fuller,  shall  revert 
to  said  City,  and  belong  to  it,  its  successors  and  assigns, 
in  fee  simple  forever ;  and  the  said  Corporation  will  con- 
vey or  release  to  the  City  accordingly." 

It  will  thus  be  seen,  that  the  bounds  of  the  land  of 
the  City  adjacent  to  the  Public  Garden,  were  definitely 
settled  by  these  agreements. 

A  petition  of  Horace  Gray  on  behalf  of  himself  and 
his  associates,  was  presented  in  the  board  of  mayor  and 
aldermen,  on  the  twenty-fifth  day  of  September,  in  the 
year  eighteen  hundred  and  thirty-seven,  praying  that 
the  petitioners  might  be  permitted  to  occupy  a  portion 
of  the  city's  land  west  of  Charles  street,  as  and  for  a 
public  garden ;  and  the  same  was  duly  referred  to  a 
Committee.  ^ 

On  the  sixth  day  of  November  of  that  year,  an  order 
was  passed  by  the  City  Council  to  the  effect,  that  the 
Committee  on  Public  Lands  should  be  authorized  and 
empowered  to  grant  to  the  petitioners,  the  use  of  such 
portion  of  the  lands  mentioned  in  their  petition,  for  the 


1850.]         CITY  DOCUMENT.— No.  18.  25 

proposed  garden,  as  they  might  deem  expedient,  upon 
the  following  terms  and  conditions  : — 

1st.  That  no  building  should  be  erected  on  the  land 
permitted  to  be  so  used,  other  than  green-houses,  tool- 
houses,  or  such  other  buildings  as  might  be  necessary 
for  properly  maintaining  a  garden  for  flowers. 

2d.  That  no  such  building  should  exceed  fourteen 
feet  in  height  above  the  level  of  Charles  street. 

3d.  That  no  building  should  be  erected  thereon 
which  should  impair  the  contract  between  the  Boston 
and  Roxbury  Mill  Corporation,  and  the  City. 

4th.  That  all  buildings  or  other  property  belonging 
to  the  petitioners  should  be  removed  from  the  ground, 
and  the  land  peaceably  surrendered  to  the  City  author- 
ities, whenever  the  City  Council  should  require,  they 
giving  nine  months  notice  of  such  requisition. 

5th.  That  the  Trustees  or  Directors  of  the  garden 
should  annually  make  a  report  to  the  City  Council, 
signed  by  a  majority  of  their  board,  stating  the  expen- 
ditures made  and  the  income  received. 

6th.  That  the  Proprietors  of  the  garden  should,  in 
no  case,  receive  to  their  own  use  a  greater  amount  than 
six  per  cent,  per  annum  on  the  amount  invested  by 
them  therein. 

7th.  That  all  income  arising  from  the  garden  over 
and  above  such  percentage,  should  be  expended  in  im- 
provements on  the  grounds. 

8th.  That  the  petitioners  should  procure  and  file 
with  the  city  clerk,  the  written  assent  of  the  proprie- 
tors of  the  Boston  Water  Power  Corporation,  and  of 
the  Boston  and  Roxbury  Mill  Corporation,  (if  in  the 
opinion  of  the  city  solicitor,  the  last  named  Corpora- 
tion had  any  interest  therein,)  to  the  grant  by  the  City, 


26  PUBLIC  GARDEN.  [July, 

and  their  waiver  of  any  claim  of  any  right  what- 
ever, under  their  contract  with  the  City,  or  in  any  way, 
in  consequence  of  such  grant,  or  of  the  use  of  the  land 
as  a  Public  Garden ;  the  instrument  containing  such 
consent  and  waiver  to  be  satisfactory  to  the  city  so- 
licitor. 

9th.  That  no  fence  should  be  erected  on  the  west- 
erly side  of  Charles  street,  other  than  such  as  might 
be  sanctioned  by  the  mayor  and  aldermen. 

10th.  That  this  order  should  be  void  unless  the 
garden  should  be  actually  commenced  within  eight 
months  from  its  passage,  and-  notice  thereof  be  lodged 
by  the  petitioners  with  the  city  clerk. 

On  the  twenty-fourth  day  of  September,  in  the  year 
eighteen  hundred  and  thirty-eight,  a  further  petition 
was  presented  by  the  same  persons,  stating  that  they 
had  been  unable  to  conform  to  the  foregoing  order,  and 
praying  that  they  might  occupy  the  proposed  land  upon 
the  condition,  that  no  building  whatsoever,  should  be 
erected  thereon.  Whereupon  a  Committee  were  ap- 
pointed to  consider  the  same  and  report  a  plan  exhibit- 
ing the  location,  and  quantity  of  land  which  the  peti- 
tioners desired. 

Their  report  was  made  on  the  eighth  day  of  October, 
to  the  effect  that  the  land  should  be  granted,  accompa- 
nied by  an  order,  the  passage  of  which  was  by  them 
recommended ;  and  which  was  in  substance,  that  the 
Committee  on  Public  Lands  should  be  authorized  and 
empowered  to  grant  to  Horace  Gray  and  his  associates, 
the  use  of  such  portion  of  the  lands  west  of  Charles 
street,  and  also  of  the  lands  west  of  Pleasant  street,  as 
they  might  deem  expedient  for  the  purpose  of  a  Public 
Garden,  upon  substantially  the  same  conditions  as  be- 
forementioned,  except  that  no  buildings  whatever,  in  any 
event,  should  be  erected  on  any  part  of  the  lands  west 


1850.]          CITY  DOCUMENT.— -No.  18.  27 

of  Charles  street ;  and  that  no  buildings  should  be 
erected  on  the  land  situate  elsewhere,  other  than  green- 
houses, tool-houses,  or  other  such  buildings  as  might 
be  necessary  for  properly  maintaining  a  garden  of  flow- 
ers, and  that  these  should  not  exceed  fourteen  feet  in 
height  above  the  level  of  Pleasant  street ; — that  no  fence 
should  be  erected  on  that  street  or  Charles  street,  other 
than  such  as  might  be  approved  of  by  the  mayor  and 
aldermen ;  and  that  the  order  should  be  void  unless  the 
garden  should  be  commenced  within  twelve  months 
from  its  passage,  and  notice  thereof  filed  as  abovemen- 
tioned. 

The  whole  report  embracing  the  proposed  order  was 
recommitted  to  the  same  Committee  with  instructions 
to  consult  the  city  solicitor,  as  to  the  right  of  the  City 
Council  to  authorize  the  erection  of  any  building,  on 
any  part  of  the  land  proposed  to  be  granted. 

On  the  twelfth  day  of  November,  the  Committee 
made  their  further  report,  in  which  they  stated  that 
they  had  consulted  the  city  solicitor  on  the  subject, 
and  that  litigation  would  probably  follow,  upon  the 
erection  of  buildings  on  the  land;  the  City  Solicitor 
having  expressed  his  opinion  that  the  right  to  erect 
buildings  thereon  was  of  a  doubtful  character,  under  the 
compact  between  the  City  and  the  Boston  and  Roxbury 
Mill  Corporation ;  meaning  that  in  the  event  of  the 
erection  of  buildings  by  the  former  or  its  assigns  "  west 
of  Charles  street,"  (for  his  opinion  was  requested  in 
reference  to  the  erection  of  buildings  there  only,  and 
not  west  of  Pleasant  street,)  then  that  the  Corporation 
would  have  a  corresponding  right  to  erect  buildings  on 
their  own  land  on  the  other  side  of  the  channel ;  not 
by  any  means  that  the  City  or  its  assigns  were  absolute- 
ly debarred  from  building.  They  therefore  proposed 
that  the  Committee  on  Public  Lands,  should  be  au- 


28  PUBLIC  GARDEN.  [July, 

thorized  and  empowered  to  grant  to  the  petitioners,  the 
use  of  such  portion  of  the  lands  west  of  Charles 
street,  as  they  might  deem  expedient,  for  the  purpose 
of  a  Public  Garden,  upon  substantially  the  same  con- 
ditions as  mentioned  in  their  last  report. 

The  Committee  on  Public  Lands  having  been  em- 
powered pursuant  to  this  order,  reported  in  the  month 
of  the  succeeding  January,  that  they  had  assigned  to 
Mr.  Gray  and  his  associates  twenty  acres  and  a  half  of 
land,  which  together  with  a  small  piece  reserved  by 
the  City,  was  bounded  as  follows,  viz ;  "  beginning  at 
the  point  of  intersection  formed  by  the  westerly  side  of 
Charles  street,  and  the  southerly  side  of  the  Mill  Dam 
or  Western  avenue,  and  thence  running  southerly  by  the 
westerly  side  of  said  Charles  street  about  thirteen  hun- 
dred and  ten  feet  to  the  northerly  side  of  a  forty  feet  street, 
leading  to  the  city  hay  scales  near  the  empty  basin ; 
thence  running  westerly  by  the  northerly  side  of  said 
forty  feet  street  about  eight  hundred  and  thirty  feet,  to 
the  line  established  between  the  City  of  Boston,  and 
the  Boston  Water  Power  Company  ;  thence  turning  and 
running  northerly  by  said  last  mentioned  line,  about 
thirteen  hundred  and  ten  feet  to  the  said  Western  Ave- 
nue ;  thence  running  easterly  by  the  southerly  side  of 
said  Western  Avenue  six  hundred  and  fifty  feet  to  the 
point  of  beginning ;  containing  about  twenty-two  and  one 
quarter  acres ;  reserving,  however,  from  the  above  de- 
scribed premises  about  one  acre  and  three  quarters  of 
an  acre,  for  the  use  and  occupation  of  said  City  of  Bos- 
ton ;  which  is  bounded  and  described  as  follows,  viz : 
beginning  at  a  point  in  the  northerly  side  of  said  forty 
feet  street  leading  to  said  hay  scales,  at  the  distance  of 
two  hundred  and  fifty  feet  from  the  westerly  side  of 
said  Charles  street ;  thence  running  by  a  circular  line 
drawn  with  a  radius  of  one  hundred  feet  to  a  point 


1850.]          CITY  DOCUMENT— No.  18.  29 

seventy-five  feet  northerly  from  said  forty  feet  street, 
and  at  right  angles  from  a  point  in  the  northerly  side  of 
said  street,  which  is  three  hundred  and  nine  feet  and 
six  inches  from  the  westerly  side  pf  said  Charles  street ; 
thence  running  by  another  circular  line  drawn  with  a 
radius  of  one  hundred  feet  to  a  point  one  hundred  and 
fifty  feet  northerly  from  said  forty  feet  street,  and  at 
right  angles  to  a  point  in  the  northerly  side  of  said 
forty  feet  street,  which  is  three  hundred  and  sixty-nine 
feet  distant  from  the  westerly  side  of  said  Charles 
street;  thence  running  westerly  parallel  to  said  forty 
feet  street,  and  at  the  distance  of  one  hundred  and  fifty 
feet  therefrom,  about  four  hundred  and  forty-five  feet 
to  the  line  established  between  said  City  of  Boston,  and 
the  Boston  Water  Power  Company;  thence  running 
southerly  by  said  last  mentioned  line,  one  hundred  and 
fifty  feet  to  said  forty  feet  street ;  thence  running  east- 
erly by  the  northerly  side  of  said  forty  feet  street,  about 
five  hundred  and  eighty  feet  to  the  said  point,  which  is 
two  hundred  fifty  feet  west  from  Charles  street,  con- 
forming to  a  plan  examined  by  Alexander  Wadsworth, 
dated  December  26,  1838." 

This  land  composed  nearly  the  whole  of  the  present 
Public  Garden.  And  on  the  twenty-sixth  day  of  Octo- 
ber in  the  year  eighteen  hundred  and  forty-six,  an  order 
was  passed  by  the  City  Council  that  the  residue  of  the 
land,  between  the  then  Public  Garden,  and  the  contin- 
uation of  Boylston  street,  should  be  granted  to  these  pro- 
prietors, or  trustees,  on  the  same  terms  and  conditions, 
as  the  former  grant,  with  a  reservation  for  the  use  of 
the  City,  of  such  part  thereof  as  was  occupied  by,  or 
appurtenant  to  its  buildings. 

By  an  act  of  the  Legislature  passed  on  the  first  day 
of  February  eighteen  hundred  and  thirty-nine,  Horace 
Gray,  George  Darracott,  Charles  P.  Curtis  and  their 


30  PUBLIC  GARDEN.  [July, 

associates,  and  successors,  were  made  a  corporation  by 
the  name  of  the  Proprietors  of  the  Botanic  Garden  in 
Boston,  with  all  the  powers,  and  privileges,  and  subject 
to  the  duties,  restrictions,  and  liabilities  mentioned  in 
the  forty-fourth  chapter  of  the  Revised  Statutes,  and 
were  empowered  to  hold  real  and  personal  estate  to  an 
amount  not  exceeding  fifty  thousand  dollars.  It  may 
be  well  to  observe  here  that  these  persons  were  the 
original  petitioners  or  some  of  the  original  petitioners 
for  the  use  of  this  land, 

On  the  fourteenth  day  of  November,  eighteen  hun- 
dred and  forty-two,  the  Committee  on  Public  Lands 
were  instructed  to  take  into  consideration,  the  expe- 
diency of  laying  out  and  disposing  of  the  City's  lands, 
southwest  of  Charles  street,  provided  the-  same  could  be 
done  to  advantage,  and  for  the  benefit  of  the  City. 

On  the  twenty-eighth  day  they  reported  that  it  would 
not  be  for  the  interest  of  the  City  to  sell'at  that  time. 

On  the  twenty-fourth  day  of  April  in  the  next  year, 
the  Committee  were  requested  to  advertise  for  sale  such 
land  as  in  their  opinion  could  be  profitably  sold  with- 
out prejudice  to  the  interest  and  convenience  of  the 
City. 

On  the  fourth  day  of  the  succeeding  September  a  re- 
monstrance was  presented  by  the  Boston  and  Providence 
Railroad  Corporation,  against  the  sale  by  the  City  of 
an  alleged  street,  on  the  southerly  end  of  the  ropewalk 
lands.  The  remonstrants  stated  that  in  the  year  seven- 
teen hundred  and  ninety-four,  the  inhabitants  of  the 
Town  of  Boston,  in  town  meeting  legally  assembled,  re- 
served a  certain  lot  of  land  sixty  feet  wide  for  a  street 
and  public  highway,  running  from  Pleasant  street  to  the 
channel  of  Charles  River,  being  on  the  southerly  end  of 
these  lands,  and  that  from  that  time,  the  said  piece  of  land 
sixty  feet  wide,  had  been  known,  recognized,  and  used 


1850.]          CITY  DOCUMENT.— No.  18.  31 

as  a  public  street  and  highway,  and  had  never  been 
discontinued,  and  had  been  staked  and  fenced  out  by 
the  City,  and  that  the  abutters  on  said  street  had  deriv- 
ed and  acquired  an  indefeasible  right  and  easement  in 
common  with  all  other  inhabitants  of  the  City,  in  said 
piece  of  land  sixty  feet  wide  to  be  used  perpetually  as 
a  street  and  public  highway ; — and  further  setting  forth 
that  they  owned  land  contiguous  thereto,  and  that  the 
street  was  of  great  value  and  benefit  to  them,  and  that 
the  City  had  advertised  the  same  for  sale,  and  more- 
over that  they  would  contest  by  all  legal  means,  the 
right  of  purchasers  and  others,  to  incumber  or  obstruct 
the  same. 

About  the  same  time  there  was  also  a  remonstrance 
presented,  signed  by  Josiah  Bradlee  and  others,  against 
the  sale  of  the  lands  lying  on  Pleasant  street,  and  the 
flats  reclaimed  from  Charles  River ;  which  two  remon- 
strances were  referred  to  the  last  mentioned  Committee, 
who  shortly  afterwards  made  their  report  thereon,  ta 
the  effect ;  that  the  land  in  question  was  not  "  in  front 
and  west  of  Charles  street,"  the  limit  defined  in  the  con- 
tract between  the  City  and  the  Roxbury  Mill  Corporation 
to  which  some  of  the  remonstrants  had  referred,  and  that 
even  in  the  event  of  the  erection  of  buildings  by  the 
City  "  in  front  and  west  of  Charles  street,"  this  Corpo- 
ration would  not  be  "  relieved  from  all  restrictions  from 
building  on  their  flats  contiguous  to  the  flats  and  land  be- 
longing to  the  City,"  as  these  last  remonstrants  stated,  for 
in  "  no  case  could  that  Corporation  build  on  this  side  of 
the  channel,"  and  that  the  land  so  advertised,  in  its  state 
at  that  time,  "  was  unworthy  to  be  named  as  City  prop- 
erty," being  an  "  unsightly  waste,  the  resort  of  menageries 
and  public  shows,  and  the  receptacle  of  the  dirt  and  filth 
of  the  city ;"  that  they  could  not  agree  as  one  of  the 
remonstrances  had  assumed,  that  that  land  had  always 


32  PUBLIC  GARDEN.  [July, 

• .  • 
been  regarded  as  "  appurtenant  to  the  Common  ;"  neither 

could  they  agree  that  this  land  and  that  west  of  Charles 
street  were  "  under  the  same  title  and  none  other  than 
that  whereby  the  Common,  strictly  so  called,  was  held ;" 
for, that  within  twenty  years  before,  at  the  time  of,  and 
after  the  adoption  of  the  City  Charter,  the  fee  of  that 
land  belonged  to  private  individuals,  on  which  were 
erected  high  and  commodious  hemp  stores,  and  that 
the  circumstance  that  the  Ordinance  of  1834  mentions 
"flats  contiguous  or  appurtenant"  to  the  Common,  while 
the  City  Charter  specifies  the  Common  and  Faneuil  Hall 
only  as  exempt  from  sale,  was  decisive  of  this  question 
in  the  minds  of  the  Committee.  The  ordinance  pass- 
ed April  10,  1834,  here  referred  to,  provided  for  the 
appointment  of  a  Superintendent  of  and  Committee  on 
Public  Lands,  and  the  disposition  by  sale  or  otherwise 
by  him,  under  their  directions,  of  all  and  any  of  the 
lands  of  the  City,  except  the  Common  and  flats  contig- 
uous or  appurtenant  to  the  same,  and  the  City  Wharf 
east  of  Faneuil  Hall  Market. 

From  this  ordinance,  it  is  evident  that  the  sale  of 
such  flats,  (and  the  Committee  so  state  in  their  report,) 
would  require  the  sanction  and  approval  of  the  City 
Council  in  order  to  be  valid,  but  that  the  Superinten- 
dent, under  the  regulations  prescribed  by  the  Land  Com- 
mittee, had  full  power  to  sell  any  land  to  the  City,  other 
than  that  mentioned  in  the  exception  without  such 
sanction  and  approval.  Upon  this  report  an  order  was 
passed  confirming  a  sale  of  a  part  of  these  public  lands 
by  the  Committee,  and  authorizing  them  to  sell  such 
other  parts  of  the  same  as  they  might  deem  for  the 
public  interest.  The  Committee  in  conjunction  with 
their  report  presented  an  opinion  of  Mr.  Pickering, 
then  City  Solicitor,  upon  the  subject  of  the  right  of  the 
City  to  sell  the  public  lands,  which  had  been  so  adver- 


1850.]         CITY  DOCUMENT.— No.  18.  33 

tised.  In  it  he  states,  "  I  am  of  opinion,  that  the  City 
has  a  legal  right  to  sell  the  lands  in  question,  notwith- 
standing the  suggestion  now  made  against  such  right. 
It  has  been  suggested,  that  by  an  indenture  made  Feb- 
ruary 1st,  1827,  between  the  City  of  Boston  and  the 
Boston  and  Roxbury  Mill  Corporation,  the  right  to  sell 
is  taken  away.  The  indenture  referred  to  contained  no 
prohibition  of  the  right  to  sell ;  but,  in  respect  to  the 
tract  of  land,  which  bounds  easterly  on  Charles  street, 
and  which  is  the  subject  of  the  covenants  in  that  in- 
denture, the  instrument  provides,  that  neither  the  above 
named  Corporation,  nor  their  assigns,  shall  erect  any 
building  within  said  Basin,  (the  Receiving  Basing  in 
front  and  west  of  the  City's  land  on  Charles  street,  within 
the  distance  of  one  hundred  rods  from  said  street ;  unless 
the  City  or  its  assigns  shall  erect  buildings  upon  their 
said  land  in  front  and  west  of  said  Charles  street ;  and 
further,  that  neither  the  said  Corporation  nor  their  as- 
signs shall,  at  any  time,  erect  any  buildings  within  said 
basin,  between  said  street  and  the  channel  immediately  in 
front  thereof,  and  west  of  said  street,  whether  said  City 
shall  use  its  said  land  for  building  or  not 

The  effect  of  this  covenant  is  not  to  restrict  the  City 
from  selling  the  whole,  or  any  part  of  the  lands  on 
Charles  street,  but  that,  if  the  City  or  its  assigns  shall 
erect  buildings  on  that  land,  then  the  Boston  and  Rox- 
bury Mill  Corporation  and  their  assigns  shall  have  the 
like  right  to  build  on  their  land  opposite  to  it,  and  on 
the  west  side  of  the  channel,  but  not  within  one  hun- 
dred rods,  or  sixteen  hundred  and  fifty  feet  of  Charles 
street. 

The  latter  provision  of  the  above  covenant  may  re- 
quire a  short  explanation.  It  refers  to  a  strip  of  land 
lying  on  the  easterly  side  of  the  channel,  and  which 


34  PUBLIC  GARDEN.  [July, 

upon  the  settling  of  the  boundary  line  between  the  City 
and  the  Corporation,  fell  within  the  bounds  of  the  Cor- 
poration's lands. 

The  effect  of  these  covenants  then,  is — 

1st.  That  the  Corporation  agree  not  to  build,  in  any 
event,  unless  the  City  or  its  assigns  shall  first  build. 

2d.  If  the  Corporation  or  its  assigns  shall  in  such 
case  build,  then  the  strip  of  land  above  described  shall 
not  be  used  by  the  Corporation,  but  shall  revert  to  the 
City. 

As  Charles  street  is  understood  to  terminate  (south- 
erly) at  the  place  where  it  meets  Boylston  street,  the 
lands  proposed  to  be  sold,  do  not  appear  to  be  compre- 
hended within  the  limits  of  the  land,  upon  which  the 
above  indenture  would  operate. 

That  land  is  referred  to,  as  lying  '  in  front  and  west 
of  the  City's  lands  on  Charles  street ;'  and  in  a  subse- 
quent clause  of  the  indenture,  restricting  the  Corpora- 
tion as  to  the  erection  of  buildings  on  their  own  land 
opposite  to  that  of  the  City,  the  land  of  the  Corporation 
west  of  the  City's  land  is  referred  to  as  being  '  between 
said  street  and  the  channel  immediately  in  front  thereof 
and  west  of  said  street ;'  which  description  of  the  Cor- 
poration's land  concurs  in  defining  the  bounds  of  the 
City's  land. 

But  even  if  the  lands  proposed  to  be  sold,  could  by 
legal  construction  be  deemed  a  part  of  the  lands  upon 
which  the  indenture  is  to  operate,  which  I  do  not 
think  is  the  case,  still  that  instrument  does  not  restrict 
the  right  of  selling,  as  I  have  before  observed." 

At  or  about  the  same  time  his  opinion  was  requested 
by  the  Common  Council  upon  the  question,  "  whether 
the  City  Council  have  any  power  under  the  City  Charter 
to  sell  any  part  of  the  public  lands  west  of  Pleasant  and 
south  of  the  continuation  of  Boylston  street." 


1850.]  CITY  DOCUMENT— No.  18.  35 

This  latter  opinion  bears  date  September  27,  1843, 
and  in  it  he  states,  that  "  presuming  by  the  terms  in 
which  the  question  is  proposed,  it  was  not  intended  to 
inquire  whether  any  express  power  to  make  sale  of  the 
public  lands  in  question,  was  given  by  the  Charter,  but 
whether  it  contained  any  prohibition  applicable  to  the 
present  case,  against  the  exercise  of  the  general  power, 
which  the  City  Council  has  to  sell  any  part  of  the  pub- 
lic lands,"  he  would  consider  the  subject  accordingly. 

He  continues,  "  By  the  provision  of  the  charter, 
(Section  16,)  the  City  Council  has  full  power  to  lease  or 
sell  any  of  the  public  lands  or  buildings,  except  Faneuil 
Hall  and  the  Common. 

As  therefore  the  lands  now  in  question  are  not  in 
any  manner  connected  with  Faneuil  Hall,  it  follows 
that  unless  they  constitute  a  part  of  the  Common,  the 
general  authority  to  sell,  would  extend  to  them,  as  well 
as  to  any  other  portion  of  the  public  lands. 

The  question  under  consideration,  therefore,  is  in 
substance,  whether  the  lands  proposed  to  be  sold  are  a 
part  of  the  Common,  within  the  intent  and  meaning 
of  the  charter ;  if  they  are  a  part  of  it,  they  cannot  be 
sold,  if  otherwise,  they  may  be. 

I  beg  leave  here  to  observe,  that  with  respect  to  a 
part  of  these  lands,  that  is  the  southerly  part,  I  have 
lately  given  an  opinion*  by  request  of  the  Committee  on 
Public  Lands ;  and  as  that  opinion  has  been  submitted 
to  the  Common  Council  and  printed  for  their  use,  I  ask 
leave  on  the  present  occasion  to  refer  to  it,  so  far  as 
concerns  that  portion  of  the  land  in  question. 

That  the  southerly  part  of  the  ropewalk  lands,  (as 
they  have  been  called,)  did  not  constitute  a  part  of  the 
Common,  within  the  purview  of  the  charter,  at  the  tune 

*  The  opinion  here  referred  to,  was  an  opinion  given  in  reference  to  the  alleg- 
ed highway,  sixty  feet  wide,  mentioned  in  the  remonstrance  of  the  Boston  and 
Providence  Railroad  Corporation. 


36  PUBLIC  GARDEN.  [July, 

it  was  granted,  is  manifest,  from  the  fact,  that  the  whole 
of  those  lands  for  nearly  thirty  years  before,  had  not 
been  the  property  of  the  City,  but  of  private  individ- 
uals, and  so  continued  for  two  years  after  the  granting 
of  the  charter,  when  they  were  re-purchased  by  the 
City,  of  the  proprietors."  After  stating  that  the  sub- 
ject of  the  sale  of  the  upland  and  flats  west  of  Charles 
street,  was  submitted  to  the  inhabitants  in  general 
meeting,  as  before  remarked,  he  adverts  to  the  fact  that 
the  Common,  in  one  of  the  questions  submitted,  was 
described  as  lying  between  Charles,  Beacon,  Park,  Com- 
mon, and  Boylston  streets,  and  was  thus  known,  recog- 
nized, and  understood  by  the  City  Government. 

He  proceeds,  that  "  It  has  been  suggested,  that  the 
lands  in  question  may  be  considered  as  a  part  of  the 
Common,  on  the  ground  of  their  being  flats,  and  as 
such  appurtenant  to  the  upland  called  the  Common,  in 
conformity  with  the  principle  of  the  ancient  Colony 
ordinance  respecting  rights  in  flats.  The  question  now 
presented,  however,  does  not,  in  my  opinion,  bring  the 
case  within  the  principle  of  that  ordinance.  The  flats, 
undoubtedly,  were  the  property  of  the  City,  and  were 
appurtenant  to  their  upland ;  but  they  were  not  the 
property  of  the  City,  as  being  appurtenant  to  the  Com- 
mon  as  such.  The  term  Common,  was  the  name  of  a 
piece  of  land  appropriated  to  a  specific  public  use  ;  as, 
at  one  time,  for  a  pasture,  at  another,  for  a  training 
field,  at  another  for  a  public  walk,  &c. ;  and  a  Common, 
by  that  description,  would  not  be  presumed  in,  law,  to 
draw  after  it  as  an  incident,  the  adjacent  flats,  particu- 
larly if  those  flats  were  of  such  a  nature  as  not  to  admit 
of  their  being  used  and  enjoyed  for  the  purposes  of  a 
pasture,  a  training  field,  a  public  walk,  &c.,  to  which 
the  Common  itself  was  appropriated."  Mr.  Pickering 
further  state"d,  that  although  some  of  his  remarks  in 


1850.]        CITY  DOCUMENT.— No.  18.  37 

this  opinion,  might  be  considered  as  having  a  bearing 
on  the  subject  of  the  lands  immediately  west  of  the 
Common,  yet  his  opinion  was  intended  to  be  confined 
to  the  legal  question  submitted  to  him,  as  to  the  right 
of  the  City  to  sell  the  lands  west  of  Pleasant  street  and 
south  of  the  continuation  of  Boylston  street. 

It  is  deemed  advisable  to  mention  in  this  connection, 
that  the  ropewalk  lands  (so  called,)  composed  nearly  one 
half  of  the  width,  and  about  two  thirds  of  the  length 
of  what  is  now  called  the  Public  Garden,  together  with 
a  tract  of  land  now  known  as  the  easterly  part  of  the 
continuation  of  Boylston  street,  and  land  lying  southerly 
of  that  continuation ;  and  that  nearly  the  whole  of 
those  lands  south  of  that  continuation,  have  been  sold 
by  the  City,  and  a  large  portion  thereof  built  upon. 
Your  Committee  have  also  caused  to  be  searched  the 
records  of  our  Courts  to  ascertain  what  judicial  action, 
(if  any,)  has  been  taken  in  relation  to  the  ropewalk 
lands,  and  the  residue  of  the  lands  west  of  the  Common, 
and  have  found  but  two  cases  relating  thereto,  the  pre- 
cise nature  and  result  of  which,  it  is  material  should  be 
set  forth  in  this  report. 

The  first  was  a  bill  in  equity,  filed  November  1, 
1843,  in  the  Supreme  Judicial  Court  for  this  county, 
brought  by  the  Boston  and  Providence  Railroad  Cor- 
poration against  the  City.  In  it,  this  Corporation 
averred  the  laying  out  by  the  City  of  the  sixty  feet 
street  or  public  way,  mentioned  in  their  remonstrance  ; 
that  they  had  located  the  terminus  of  their  road  near 
the  same,  and  the  only  access  to  their  depot  and  store- 
houses for  merchandize  and  passengers  was  over  this 
street,  save  a  narrow  passage,  over  their  land  eighteen 
feet  wide  and  wholly  inadequate  for  that  purpose ;  and, 
further,  that  the  City  had  given  public  notice  that 
they  should  make  sale  on  the  third  day  of  November 


38  PUBLIC  GARDEN.  [July, 

then  next  ensuing,  of  the  soil  of  the  said  way,  laid  out 
into  house  and  other  building  lots,  and  should  close  up 
the  same  by  permanent  fences  and  other  obstructions  ; 
and  that  the  complainants  had  reason  to  fear  that  the  pur- 
chasers of  the  said  lots,  if  sold,  would  place  substantial 
and  permanent  buildings  thereon.  It  concluded  with  a 
prayer  for  an  injunction  against  the  City,  restraining 
them  "  from  stopping  up,  or  in  any  manner  obstructing 
the  said  way,  and  from  making  sales  of  the  soil  thereof." 
It  is  evident,  that  this  suit  was  instituted  solely  for 
the  purpose  of  preventing  the  City  from  selling  or  ob- 
structing this  alleged  way,  situated  at  the  southerly 
part  of  the  ropewalk  lands,  and  was  not  instituted  for 
the  purpose  of  preventing  sales  of  any  other  land  in 
that  vicinity  belonging  to  the  city.  This  position  is 
further  and  conclusively  established,  by  the  order  for  a 
temporary  injunction  passed  by  the  court  on  the  same 
day  the  bill  was  filed,  which  was  as  follows : — 


"  SUPREME  JUDICIAL  COURT,  )  /-.  ,   rr 

Norfolk  ss.  I  Oct  Tenn'  1843' 

"  It  is  ordered  by  the  court,  that  upon  filing  in  the 
office  of  the  clerk  of  this  court  in  the  county  of  Suffolk, 
the  Bill  of  Complaint  wherein  the  Providence  Railroad 
Corporation  are  complainants,  and  the  City  of  Boston 
defendants,  and  the  affidavits  which  have  been  read  in 
the  same  cause,  a  writ  of  injunction  issue  directed  to 
the  said  city,  and  their  servants  and  agents,  enjoining 
them  from  selling  any  lands  lying  within  the  limits  of 
the  way  described  in  the  said  Bill,  and  from  incumber- 
ing  or  obstructing  the  same,  until  the  further  order  of 
this  court  sitting  in  the  county  of  Suffolk,  or  of  some 
Justice  thereof;  and  that  the  defendants  have  leave  to 
apply  at  any  time  to  this  court  sitting  in  the  county  of 


1850.]         CITY  DOCUMENT.— No.  18.  39 

Suffolk,  or  to  any  justice  of  this  court,  to  dissolve  the 
said  injunction. 

The  Clerk  of  the  Supreme  Judicial  Court  for  the 
county  of  Suffolk,  will  enter  the  foregoing  order. 
For  the  Judges, 

L.  SHAW,  C.  J.  S.  J.  C." 
"  Nov.  1,  1843." 

An  injunction  was  issued  on  this  order,  on  the 
same  day. 

On  the  fourth  day  of  December,  the  answer  of  the 
City  was  filed,  denying  that  the  same  was  ever  laid  out 
a  public  way,  or  street  of  said  City.  A  replication 
thereto  was  duly  filed  on  the  thirteenth  day.  At  the 
March  term  of  the  court,  1845,  viz:  June  23,  1845, 
the  injunction  was  made  perpetual.  It  may  be  proper 
to  remark  here,  that  the  court  were  equally  divided 
upon  the  question  whether  the  temporary  injunction 
should  be  dissolved,  and  the  burden  was  on  the  City  to 
show  sufficient  cause  for  such  dissolution ;  and  hence 
this  result.  This  cause,  however,  was  amicably  ad- 
justed between  the  litigant  parties,  at  the  November 
term  of  the  court,  1846. 

The  other  suit  was  a  bill  in  equity,  brought  against 
the  City  June  17,  1844,  in  the  same  court,  by  Mrs. 
Ann  Lewis,  the  wife  of  Joseph  W.  Lewis,  one  of  the 
owners  of  the  ropewalk  lands,  and  one  of  the  grantors 
thereof  to  the  City,  to  recover  her  dower  in  the  three 
ropewalk  lots,  granted  in  1794,  viz:  lot  1,  2,  and  3, 
and  in  land  at  the  comer  of  Carver  and  Pleasant 
streets.  The  City  contended  that  Mr.  Lewis,  her  hus- 
band, by  virtue  of  the  resolve  of  the  Legislature,  be- 
fore referred  to,  released  her  dower  in  these  lots,  and 
that  it  was  also  released  subsequently  by  the  joint 
deed  of  herself  and  her  husband.  In  opposition  to 


40  PUBLIC  GARDEN.  [July, 

which  she  contended  that  the  Legislature  had  no  right 
to  empower  her  husband  to  release  the  same,  and  fur- 
ther, that  she  was  of  unsound  mind  at  the  time  her 
husband's  deed,  as  well  as  at  the  time  their  joint  deed 
was  executed. 

The  cause  was  referred  to  a  Master  in  Chancery  to 
ascertain   the   value   of  her   equitable    dower   in   the 
premises,  who  reported  as  follows,  viz : 
That  the  true  value  of  the  three  ropewalk 

lots,  February  21,  1824,  was  -  -  $33,500.00 
The  value  of  the  buildings,  ...  14,500.00 
The  value  of  the  house  and  land  at  the 

corner  of  Carver  and  Pleasant  streets,  -         9,000.00 



$57,000.00 

Amount  of  principal  and  interest  then 
due  upon  certain  mortgages  on  the 
premises,  ......  29,201.78 



Leaving  a  sum  amounting  to  -  $27,798.22 

on  which  dower  was  to  be  computed. 

And  that  on  this  last  mentioned  sum  the  true  value 
of  the  complainant's  (Mrs.  Lewis')  equitable  right  of 
dower  in  the  premises,  with  annual  interest  from  Feb- 
ruary 21,  1824,  was  the  sum  of  five  thousand  four  hun- 
dred and  five  dollars.  ($5,405.00.) 

Whereupon  on  the  first  day  of  July,  in  the  year 
eighteen  hundred  and  forty-five,  a  final  decree  was 
entered  by  the  court  in  favor  of  Mrs.  Lewis,  against  the 
City  for  the  last  named  sum,  and  the  costs  of  suit  taxed 
at  ninety-five  dollars,  ($95.00).  And  it  was  further 
ordered  by  the  court  in  case  said  amounts  were  not 
paid  within  two  days,  that  execution  therefor  should 
issue  against  said  City. 

No   execution   was   ever  issued   upon   this  decree ; 


1850.]          CITY  DOCUMENT.— No.  18.  41 

but  on  the  first  day  of  February,  in  the  year  eighteen 
hundred  and  forty-nine  Mrs.  Lewis  instituted  an  ac- 
tion at  law,  returnable  to  the  March  term  of  the  same 
court  then  next  ensuing,  for  the  recovery  of  these 
sums ;  the  time  for  the  issue  of  an  execution  without 
some  additional  proceedings  having  expired  ; — and 
on  the  twenty-fourth  day  of  May  last,  judgment  was 
entered  in  that  action  in  favor  of  Mrs.  Lewis,  for  the 
sum  of  six  thousand  six  hundred  and  seventy-eight 
dollars  and  seventy-three  cents  debt  or  damages,  and 
costs  amounting  to  the  sum  of  twenty-nine  dollars  and 
sixty-seven  cents,  both  of  which  sums  have  been  paid 
by  the  City  upon  an  execution  issued  against  it ;  sev- 
eral sums  having  been  paid  by  it  in  the  meantime,  on 
account  of  being  adjudged  by  reason  of  this  decree,  a 
trustee  of  Mrs.  Lewis,  in  sundry  suits  instituted  against 
her,  by  different  individuals. 

Your  Committee  have  thus,  at  great  length,  stated 
the  various  proceedings  of  the  town  and  city  in  refer- 
ence to  the  Public  Garden,  and  have,  in  giving  its  early 
history  and  title,  the  latter  of  which  is  inseparably  con- 
nected and  interwoven  with  the  title  of  the  City  to  its 
other  public  lands,  been  compelled  to  allude  to  their 
history  also ;  having  deemed  a  statement  so  extended, 
necessary  in  arriving  at  a  proper  knowledge  and  under- 
standing of  the  tenure  by  which  that  garden  is  now 
held  by  the  City.  And  although  some  of  the  facts 
stated  may  apparently  seem  to  have  no  material  bearing 
upon  the  subject,  yet,  upon  a  close  inspection,  the 
utility  and  necessity  of  their  insertion  will  be  readily 
perceived. 

Your  Committee  have  also  stated  all  adjudications 
of  our  courts  which  have  been  made,  relating  to  the 
subject,  and  before  proceeding  to  the  consideration 


42  PUBLIC  GARDEN.  [July, 

of  the  relative  expediency  of  the  sale  or  improve- 
ment of  this  land,  would  beg  leave  briefly  to  state  ;  that 
the  original  title  to  it  was  unquestionably  acquired  by 
the  town,  in  the  same  manner  as  its  title  to  its  other 
lands,  in  the  early  periods  of  its  settlement ;  that  there 
is,  as  your  Committee  confidently  and  unqualifiedly 
believe,  no  incumbrance  upon  the  title,  or  restriction 
upon  the  right  and  power  of  the  City  to  dispose  of 
the  land  by  sale  or  otherwise,  unless  the  same  has 
originated  since  the  time  of  the  acquisition  thereof  by 
the  town,  of  which  your  Committee  have  no  knowledge, 
and  consequently  do  not  believe  j-^— that  the  town  in 
1794  granted  a  part  of  the  present  Public  Garden, 
together  with  a  large  tract  of  land  lying  southerly  of 
the  present  continuation  of  Boylston  street  to  the  rope- 
walk  proprietors,  as  already  mentioned,  upon  certain 
conditions ; — that  they  or  their  assigns  were  in  the  pos- 
session and  occupancy  of,  and  owned  the  ropewalk 
lands  at  the  time  of  the  granting  of  the  City  Charter, 
and  the  organization  of  the  town  into  a  city,  without 
question  of  their  right  of  property  therein,  and  had  so  oc- 
cupied, possessed  and  owned  the  same  for  nearly  twenty- 
eight  years  before,  and  continued  so  to  occupy,  possess 
and  own  the  same  for  about  two  years  afterwards ; — 
that  it  is  admitted  that  at  one  time  the  Public  Garden, 
or  some  part  of  it,  might  have  come  under  the  denomi- 
nation of  flats,  and  as  such  been  appurtenant  to  the 
upland ;  but  the  Common  could  not  have  been  presumed 
in  law,  to  draw  after  it  as  incident,  the  adjacent  flats, 
particularly  if  those  flats  were  of  such  a  nature,  as  not 
to  admit  of  their  being  used  and  enjoyed  for  the  pur- 
pose to  which  the  Common  itself  was  appropriated,  as 
stated  in  one  of  Mr.  Pickering's  opinions ;  that  the 
City,  in  the-  year  1824,  by  good  and  sufficient  deeds 
of  warranty,  re-acquired  the  ropewalk  lands ;  that 


1850.]          CITY  DOCUMENT— No.  18.  43 

a  few  years  afterwards  it  entered  into  an  indenture 
with  the  Boston  and  Roxbury  Mill  Corporation,  in 
which  the  latter  covenanted,  that  neither  they  nor 
their  assigns  should  at  any  time  erect  any  buildings 
within  their  basin,  (meaning  the  receiving  basin  so 
called,)  between  Charles  street  and  the  channel,  imme- 
diately in  front  and  west  of  that  street  in  any  event ; 
and  further,  that  they  would  not  erect  any  building 
within  their  basin  in  front  and  west  of  the  City's  land 
on  that  street,  within  the  distance  of  one  hundred  rods 
from  that  street,  unless  the  City  or  its  assigns  should 
erect  buildings  upon  their  land  situate  on  the  same ; — 
which  covenants  may  be  briefly  construed  to  mean,  that 
in  no  event  should  that  Corporation  or  its  assigns  erect 
any  buildings  on  this  side  of  the  channel,  immediately 
in  front  and  west  of  Charles  street,  and  in  case  the  City 
should  erect  buildings  on  its  land,  in  front  and  west  of 
that  street,  then  the  Corporation  would  have  a  corres- 
ponding right  to  build  on  their  own  land  on  the  other 
side  of  the  channel,  but  not  within  the  distance  above 
mentioned ;  and  that  whenever  the  Corporation  did 
build  within  that  distance,  then  all  the  land  in  said 
basin  east  of  a  certain  line  as  before  mentioned,  should 
revert  to  the  City,  and  belong  to  it  in  fee  simple  for 
ever; — that  in  the  latter  part  of  the  year  1838,  or  the 
early  part  of  the  year  1839,  nearly  all  the  land  com- 
prising the  present  Public  Garden,  and  the  residue 
sometime  afterwards,  were  permitted  by  the  City  to  be 
used  by  Horace  Gray  and  his  associates,  for  the  pur- 
poses of  a  Public  Garden,  with  a  reservation  however 
of  the  right  on  the  part  of  the  City  to  terminate  his, 
and  his  associates  interest  therein  and  use  thereof,  upon 
giving  nine  months  notice  to  that  effect;  and  that,  so 
far  as  your  Committee  believe,  such  permission  has  not 
yet  been  revoked  ; — that  sales  have  been  made  by  the 


44  PUBLIC  GARDEN.  [July, 

City  to  various  individuals  of  nearly  all  the  ropewalk 
lands,  south  of  the  continuation  of  Boylston  street,  and 
west  of  Pleasant  street,  under  the  sanction  and  advice 
of  Mr.  Pickering,  the  former  City  Solicitor;  that  the 
right  of  the  City  to  sell  the  Public  Garden  stands  upon 
the  same  basis,  and  is  not  varied  in  the  slightest  man- 
ner ; — and  that  such  right  has  never  been  questioned  be- 
fore any  judicial  tribunal ;  that  the  suit  instituted  by  the 
Boston  and  Providence  Railroad  Corporation  has  no 
bearing  on  the  question  of  such  right.  It  was  a  suit 
brought  to  present  the  closing  up,  and  sale  by  the  City 
of  an  alleged  public  highway,  a  right  to  pass  and  repass 
over  which,  and  to  use  which,  the  complainant  and  citi- 
zens had  acquired ; — that  the  injunction  issued  was  to 
restrain  the  City  from  closing  up  the  same  on  the  ground 
of  such  right  of  passage  and  use  ; — that  the  power  of 
the  City  to  dispose  of  the  lands  in  the  vicinity  of  this 
highway  was  not  involved  in  the  cause,  and  was  not  a 
question  to  be  decided,  and  was  not  decided  therein  ; — 
but  on  the  contrary  the  highest  judicial  tribunal  in  this 
Commonwealth,  as  your  Committee  believe  and  confi- 
dently state,  has  established  the  validity  of  the  alienation 
or  sale  (for  it  may  be  termed  the  latter  as  well  as  the 
former)  of  the  ropewalk  lands  by  the  town,  to  the  pro- 
prietors in  1794;  and  if  the  town  had  a  right  then,  to 
aliene  and  sell  the  same,  in  consideration  that  rope- 
walks  should  not  be  erected  by  the  proprietors  on  Pearl 
street,  and  no  circumstances  have  occurred  since,  to  im- 
pair or  destroy  that  right,  of  which  your  Committee  have 
no  knowledge,  the  City  certainly  has  the  same  right 
now,  or  a  stronger  right  now,  to  dispose  of  the  same  for 
a  pecuniary  consideration,  after'  an  intervening  posses- 
sion by  these  proprietors,  or  their  assigns,  adverse  to 
the  world  for  nearly  thirty  years,  and  the  impartation 


I 
1850.]         CITY  DOCUMENT.— No.  18.  45 

of  all  their  right  and  title  in  these  lands  to  the  City. 
A  slight  review  or  examination  of  the  main  features  of 
the  Lewis  suit  already  referred  to,  will  sufficiently  estab- 
lish the  ground  taken  by  your  Committee. 

The  first  principle,  fact,  or  element  to  be  proved  in 
that  suit  to  induce  or  justify  the  decree  made  by  the 
court,  as  your  Committee  believe,  was,  the  fact  that 
her  husband  had  had  an  estate  in  fee  to  the  ropewalk 
lots,  Nos.  1,  2,  &  3,  during  his  marriage  with  her;  and 
he  could  not  have  had  such  an  estate,  unless  the  grant 
or  sale  by  the  town,  in  1794,  to  Davis,  Richardson  & 
Emmons,  the  original  proprietors  of  these  three  lots, 
and  from  and  through  whom  he  claimed  title  by  sundry 
conveyances,  was  valid  and  binding — and  inasmuch  as 
such  a  decree  was  entered  and  could  not  have  been  en- 
tered without  the  existence  of  this  first  material  ele- 
ment, the  conclusion  is  irresistible,  when  we  consider 
that  the  claim  of  Mrs.  Lewis  was  violently  opposed 
by  the  City,  and  its  defence  to  the  suit  ably  main- 
tained by  its  counsel,  that  her  husband  had  such  an 
estate  in  these  lands ;  and  the  town,  being  the  origi- 
nal grantor,  had  a  right  to,  and  did  grant  such  an 
estate ;  for,  if  her  husband  had  not  such  an  estate,  she 
clearly  had  no  right  to  dower  therein.  Her  right  to 
dower,  implied  the  possession  by  her  husband  of  an 
estate  in  fee  during  their  marriage — and  his  rightful 
possession  in  fee  implied  the  right  of  the  town  to  grant 
or  sell  to  his  grantor  in  fee.  If  the  town  could  not 
make  a  valid  sale,  the  grantee  of  the  town  could  not. 
If  the  grantee  of  the  town  did  not  own  these  lands,  how 
could  he  give  a  valid  title  to  them  to  Lewis  1  If,  then, 
the  town,  in  the  year  1794,  could  dispose  of  these  lands 
in  this  manner,  and  they  were  not  a  part  of  the  Com- 


46  PUBLIC  GARDEN.  [July, 

mon  at  the  time  of  the  granting  of  the  City  Charter, 
then  your  Committee  have  not  the  least  hesitancy  in 
saying,  that  the  City's  right  to  alienate  and  dispose  of 
the  same  at  this  time  is  unlimited  and  absolute,  and 
that  they  did  not  at  the  date  of  the  Charter  constitute  a 
part  of  the  Common,  is  beyond  question  in  the  minds 
of  your  Committee;  for  by  the  word  Common  used 
therein,  could  not  have  been  contemplated  what  is  now 
popularly  known  as  the  Common,  together  with  any 
land  situated  in  that  vicinity,  which  might  at  any 
indefinitely  remote  period  be  acquired  by  the  City,  or 
any  land  then  owned  by  private  individuals,  but  the 
land  then  owned  by  the  City  and  recognized  and  famil- 
iarly known  as  the  Common,  lying  between  Beacon, 
Park,  Tremont,  Boylston,  and  Charles  streets.  The 
twenty-sixth  section  of  the  Charter  provides,  "  that 
the  City  Council  shall  have  the  care  and  superintend- 
ence of  the  public  buildings,  and  the  care,  custody,  and 
management  of  all  the  property  of  the  City,  with  power  to 
lease  or  sell  the  same,  except  the  Common  and  Faneuil 
Hall."  The  Common  is  here  stated  to  be  a  part  of  the 
property  of  the  City,  not  the  property  of  private  indi- 
viduals, but  unequivocally  the  property  of  the  City  ; 
and,  as  a  plain  and  unavoidable  conclusion,  if  a  part 
of  the  public  garden  was  not  at  that  time,  the  property 
of  the  City,  it  could  not,  by  any  mode  of  reasoning  or 
semblance  of  reason,  have  been  considered  as  a  part  of 
the  Common,  and  embraced  within  the  scope  of  this 
prohibition.  What  reason  would  there  have  been,  for 
the  Legislature  at  that  time  to  have  enjoined  upon  the 
City,  the  non-alienation  of  the  property  of  private  indi- 
viduals, in  and  to  which  it  then  had  no  claim  or  title, 
had  had  none  for  nearly  twenty-eight  years  before,  and 
contemplated  having  none — to  say  nothing  of  the  recog- 


1850.]          CITY  DOCUMENT— No.  18.  47 

nition  at  that  time  by  the  City,  of  the  bounds  of  the 
Common  being  the  five  streets  last  referred  to. 

This  brings  your  Committee  to  the  consideration  of 
the  main  subject  in  your  resolution,  the  expediency  of 
a  sale  or  improvement  of  this  garden,  and  as  the  main 
fact  to  be  considered  in  deciding  this  subject,  is  the 
financial  ability  of  the  City  to  retain  this  land,  they 
would  beg  leave  to  advert  to  its  present  pecuniary 
condition. 

Its  present  debt,  exclusive  of  the  water 

debt,  is  -  $1,731,938.79 

The  water  debt  is  4,463,205.56 

Loans  authorized  for  finishing  public 

buildings  at  Deer  Island,  and  New 

Jail,  307,000.00 

Estimated  cost  of  conveying  the  water 

to  East  Boston,  is  500,000.00 


$7,002,144.35 

So  that  in  all  probability  at  the  end  of  the  present 
fiscal  year,  the  City  debt  including  the  many  incidental 
expenses  which  will  arise  during  the  residue  of  the 
year,  notwithstanding  the  use  by  the  City  of  all  its 
other  available  means  and  resources,  will  reach  the  sum 
of  seven  millions  of  dollars.  And  it  may  be  well  to  re- 
mark here,  that  the  citizens  have  not  yet  paid  one  cent 
of  the  interest  even,  on  the  water  debt,  and  its  burden 
has  not  yet  been  felt  by  them,  in  the  slightest  manner. 

It  became  necessary  in  the  course  of  the  deliberations 
of  your  Committee,  to  enable  them  to  estimate  with 
any  degree  of  accuracy  the  value  and  extent  of  the  land 
composing  the  Public  Garden,  to  cause  it  to  be  sur- 
veyed and  laid  out  on  a  plan  of  streets  and  lots,  which 


48  PUBLIC  GAEDEN.  [July, 

plan  they  herewith  submit,  believing  that  it  will  mate- 
rially aid  the  City  Council,  in  forming  their  opinion  as 
to  the  future  disposition,  or  mode  of  disposition  of  this 
property. 

Your  Committee  would  here  remark,  that  the  whole 
garden  contains  about  one  million  square  feet  of  land, 
and  that  for  the  purpose  of  arriving  at  a  fair,  or  an  ap- 
proximation to  a  fair  valuation  of  it,  they  have  supposed 
that  three  streets  may  be  laid  out  through  it,  parallel 
or  nearly  parallel  to  Beacon  street,  and  extending  from 
Charles  street  to  the  water,  and  covering  about  one  third 
of  the  whole  land ;  one  of  these  streets  to  be  one  hun- 
dred and  seventy-five  feet  in  width,  and  the  remaining 
two,  one  hundred  feet  each  in  width,  and  that  on  the 
street  fronting  the  Common,  between  Beacon  and  Boyls- 
ton  streets,  there  may  be  laid  out, 

33  building  lots,  containing  82,400  feet, 
which  if  sold  at  $3  per  foot,  would 
amount  to $247,200.00 

On  Beacon  street,  21  building  lots,  con- 
taining 59,110  feet,  at  $3  per  foot,  -  :  ,  177,330.00 

On  the  first  street  south  of  Beacon,  from 
the  Common  to  the  water,  44  building 
lots,  containing  130,423  feet,  at  $2 
per  foot,  -  ...  260.846.00 

On  the  second  street  south  of  Beacon, 
48  building  lots  containing  148,337 
feet,  at  $3  per  foot,  -  -  445,011.00 

On  the  third  street  south  of  Beacon,  53 
building  lots,  containig  137,346  feet, 
at  $2  per  foot  -  -  274,692.00 

On  Boylston  street,  27  building  lots,  con- 
taining 59,296  feet,  at  $2  per  foot,  -  118,592.00 


1850.]          CITY  DOCUMENT.—  No.  18.  49 

And  on  the  street  fronting  the  water,  be- 
tween Beacon  and  Boylston  streets,  10 
building  lots,  containing  12,928  feet, 
at  $2  per  foot,  25,856.00 


Making  in  all,  236  lots—  629,840  feet, 

valued  at  -  $1,549,527.00 

The  estimated  value  of  the  flats  west  of 

the  Public  Garden,  containing  about 

230,000  feet,  at  17  cents  per  foot,        -         39,100.00 


Showing  the  total  value  of  the  Public 

Garden  and  flats  to  be    -  -    $1,588,627.00 

If  this  land  is  retained  by  the  City  it  will  certainly 
require  some  improvement.  In  its  present  condition  it 
is  far  from  meriting  the  name  it  bears, — is  seldom  re- 
sorted to  by  the  public,  and  wholly  unworthy  to  be 
considered  one  of  the  public  grounds  of  the  City.  If 
pointed  out  to  the  stranger,  it  is  always  done  with  an 
apology  for  its  uninviting  aspect ;  and  from  its  prox- 
imity to  our  noble  Common,  even  despoils  it  of  some  of 
its  grandeur  and  loveliness. 

Your  Committee  have  therefore  caused  to  be  ascer- 
tained the  probable  cost  of  filling  up  this  land,  and 
making  it  suitable  for  what  it  is  now  styled  a  Public 
Garden,  and  also  the  expense  of  keeping  it  as  such. 

The  cost  of  filling  up  the  34,977  squares 

which  it  contains,  at  $2.50  per  square, 

would  be  $87,442.50 

The  expense  of  filling  the  streets  and 

front  yards  to  prepare   the   land  for 

building  purposes,  15,724  squares,  at 

$2.50  per  square  would  be  -      $39,310.00 


50  PUBLIC  GARDEN.  [July, 

The  value  of  the  land  as 

before  stated  $1,588,627.00 

Less  the  expense  of  filling 

streets  39,310.00 


Leaving  a  balance  of          $1,549,317.00 
The  annual  interest  upon 

which,  at  6  per  cent,  is  $92,959.02 

236  houses  which  can  be 

built  upon  this  land  at 

$7,000.00  each,  would 

amount  to  1,652,000.00 


Making  the  sum  of  $3,201,317.00 

the  annual  tax  on  which  at  6K  mills 

on  a  dollar,  would  be  -  20,808.56 

Annual  interest  on  the  cost  of  filling  up 

the  Public  Garden,  viz.  on  $87,442.50  5,246.55 


Total,  $119,014.13 


So  that  the  annual  expense  of  keeping  the  Public 
Garden  is  about  one  hundred  and  twenty  thousand  dol- 
lars ;  its  retention  not  being  of  the  slightest  advantage, 
and  the  garden  itself  no  ornament  to  the  City. 

Upon  the  plan  it  will  be  perceived,  that  the  largest 
street  is  proposed  to  be  ornamented  by  a  park  one  hun- 
dred feet  in  width,  running  the  whole  length  of  the 
street,  and  the  two  others  by  large  spaces  of  ground  on 
each  side,  for  trees  and  shrubbery,  so  that  instead  of 
marring  the  general  appearance  of  this  part  of  the  City 
the  plan  if  executed  will  much  improve  it,  and  enhance  its 
beauty,  to  say  nothing  of  the  pecuniary  advantage  which 
will  undoubtedly  be  derived  by  the  City  from  a  sale. 


A    000  885  880    5 
1850.]         CITY  DOCUMENT.— No.  18.  51 

Your  Committee  concede  that  the  argument  used  by 
some,  that  it  should  be  the  policy  of  the  City  to  keep 
open  as  much  territory  within  its  limits  as  possible,  has 
much  force,  and  it  would  have  been  well  if  more  atten- 
tion had  been  bestowed  upon  it  in  former  days ;  and  they 
would  therefore  suggest,  that  if  the  opening  and  laying 
out  of  new  squares  or  public  grounds,  at  the  public  ex- 
pense, should  now  be  deemed  advisable,  then  that  those 
sections  of  the  City  which  are  densely  populated,  and 
where  the  streets  are  narrow  and  the  air  necessarily 
confined  and  impure,  should  be  provided  with  such 
grounds ;  and  in  the  present  state  of  the  finances  of  the 
City,  no  way  would  recommend  itself  so  strongly,  as  the 
sale  of  the  present  Public  Garden,  and  the  use  of  the 
proceeds  in  laying  out  such  grounds,  for  the  benefit  of 
those,  less  favored  than  the  inhabitants  residing  in  the 
vicinity  of  the  Common. 

In  conclusion  your  Committee  would  beg  leave  to 
state,  that  the  subject  of  the  disposal  of  this  land  has 
been  so  often,  and  so  long  agitated,  that  it  is  exceedingly 
desirable  that  it  should  be  definitely  and  finally  settled 
at  this  time.     It  has  presented  almost  yearly  a  prolific 
field  for  controversy  and  discussion,  and  has  thus  far, 
unfortunately,  never  been  destined  to  meet  with  any 
final  and  determinate  action  on  the  part  of  the  City 
Government,  and  has  rested,  and  probably  will  continue 
to  rest  in  the  same  suspense  and  uncertainty,  unless 
definitively  settled  by  a  vote  of  the  people  as  here- 
after proposed ;    and   your   Committee   would   further 
state,  that  from  a  careful  examination  and  consideration 
of  all  the  foregoing  facts,  and  biased  solely  by  their 
own  convictions  of  right,  they  unhesitatingly  express 
their  opinion  in  favor  of  the  expediency  of  a  sale  of 
this  land.     But  being  well  aware  of  the  great  import- 


52  PUBLIC  GARDEN.  [July. 

ance  of  the  subject,  and  that  no  City  Government 
should  assume  the  responsibility  of  a  sale,  without  con- 
sulting and  following  the  popular  will,  would  suggest 
the  passage  of  the  annexed  resolve. 

JOHN  P.  BIGELOW,  Chairman. 
S.  S.  PERKINS, 
BILLINGS  BRIGGS, 
ABEL  B.  MUNROE, 
NATHANIEL  BREWER, 
ALBERT  T.  MINOT, 
BENJAMIN  BEAK 

Resolved,  That  it  is  expedient  for  the  Board  of  Mayor 
and  Aldermen  to  submit  to  the  voters  of  the  City,  at 
the  next  municipal  election,  the  question  whether  the 
land  belonging  to  the  City  lying  west  of  Charles  street, 
known  as  the  "  Public  Garden,"  shall  be  sold. 


CITY    OF    BOSTON. 

In  Common  Council,  July  11,  1850. 

The  foregoing  Report  having  been  accepted,  the  reso- 
lution appended  thereto  was  passed.  And  thereupon, 

Ordered,  That  ten  thousand  copies  of  said  Report 
and  resolution  be  printed  and  distributed  among  the 
citizens. 

Sent  up  for  concurrence.     Read  and  concurred. 

JOHN    P.  BIGELOW,  Mayor. 

S313WV  SOI 


0861  9  t  /AM 

301AH3S  saivjjv  onand 


